exv10w15





Exhibit 10.15




EXECUTION COPY




 

 






[Published CUSIP Number:                     ]




CREDIT AGREEMENT




Dated as of May 20, 2008




among




NORTEK, INC.,

as the Specified U.S. Borrower,




VENTROL AIR HANDLING SYSTEMS INC.,

as the Canadian Borrower,




The Other Borrowers Named Herein,




BANK OF AMERICA, N.A.,

as Administrative Agent, Collateral Agent,U.S. Swing Line Lender and

U.S. L/C Issuer,




BANK OF AMERICA, N.A. (acting through its Canada branch),

as Canadian Swing Line Lender and

Canadian L/C Issuer,




The Other Lenders Party Hereto,




BANC OF AMERICA SECURITIES LLC,

CREDIT SUISSE SECURITIES (USA) LLC,

as Joint Lead Arrangers




BANC OF AMERICA SECURITIES LLC,

CREDIT SUISSE SECURITIES (USA) LLC,

and

GOLDMAN SACHS CREDIT PARTNERS L.P.,




as Joint Bookrunners




and




CREDIT SUISSE SECURITIES (USA) LLC

GOLDMAN SACHS CREDIT PARTNERS L.P.

and

UBS SECURITIES LLC,




as Co-Syndication Agents




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Documentation Agent




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

	 
	 	 	 	 	 	 
	1.01

	 	Defined Terms
	 	 	1	 
	1.02

	 	Other Interpretive Provisions
	 	 	47	 
	1.03

	 	Accounting Terms
	 	 	48	 
	1.04

	 	Rounding
	 	 	49	 
	1.05

	 	Times of Day
	 	 	49	 
	1.06

	 	Letter of Credit Amounts
	 	 	49	 
	1.07

	 	Currency Equivalents Generally
	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

	 
	 	 	 	 	 	 
	2.01

	 	The Loans
	 	 	49	 
	2.02

	 	Borrowings, Conversions and Continuations of Loans
	 	 	55	 
	2.03

	 	Letters of Credit
	 	 	57	 
	2.04

	 	Swing Line Loans
	 	 	63	 
	2.05

	 	Prepayments
	 	 	69	 
	2.06

	 	Termination or Reduction of Commitments
	 	 	72	 
	2.07

	 	Repayment of Loans
	 	 	73	 
	2.08

	 	Interest
	 	 	73	 
	2.09

	 	Fees
	 	 	74	 
	2.10

	 	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	74	 
	2.11

	 	Evidence of Debt
	 	 	75	 
	2.12

	 	Payments Generally; Administrative Agent’s Clawback
	 	 	76	 
	2.13

	 	Sharing of Payments by Lenders
	 	 	77	 
	2.14

	 	Nature of Obligations
	 	 	78	 
	2.15

	 	Borrower Agent
	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

	 
	 	 	 	 	 	 
	3.01

	 	Taxes
	 	 	80	 
	3.02

	 	Illegality
	 	 	83	 
	3.03

	 	Inability to Determine Rates
	 	 	84	 
	3.04

	 	Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	84	 
	3.05

	 	Compensation for Losses
	 	 	85	 
	3.06

	 	Mitigation Obligations; Replacement of Lenders
	 	 	86	 
	3.07

	 	Survival
	 	 	86	 






i









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

	 
	 	 	 	 	 	 
	4.01

	 	Conditions of Initial Credit Extension
	 	 	87	 
	4.02

	 	Conditions to all Credit Extensions
	 	 	92	 
	 
	 	 	 	 	 	 
	ARTICLE V

REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	5.01

	 	Existence, Qualification and Power; Compliance with Laws
	 	 	93	 
	5.02

	 	Authorization; No Contravention
	 	 	93	 
	5.03

	 	Governmental Authorization; Other Consents
	 	 	94	 
	5.04

	 	Binding Effect
	 	 	94	 
	5.05

	 	Financial Statements; No Material Adverse Effect
	 	 	94	 
	5.06

	 	Litigation
	 	 	95	 
	5.07

	 	No Default
	 	 	95	 
	5.08

	 	Ownership of Property; Liens
	 	 	95	 
	5.09

	 	Environmental Compliance
	 	 	96	 
	5.10

	 	Insurance
	 	 	96	 
	5.11

	 	Taxes
	 	 	97	 
	5.12

	 	ERISA Compliance
	 	 	97	 
	5.13

	 	Subsidiaries; Equity Interests; Loan Parties
	 	 	98	 
	5.14

	 	Margin Regulations; Investment Company Act
	 	 	98	 
	5.15

	 	Disclosure
	 	 	98	 
	5.16

	 	Compliance with Laws
	 	 	98	 
	5.17

	 	Intellectual Property; Licenses, Etc.
	 	 	98	 
	5.18

	 	Solvency
	 	 	99	 
	5.19

	 	Casualty, Etc.
	 	 	99	 
	5.20

	 	Perfection, Etc.
	 	 	99	 
	5.21

	 	[Reserved]
	 	 	99	 
	5.22

	 	Tax Shelter Regulations
	 	 	99	 
	5.23

	 	Anti-Terrorism Law
	 	 	99	 
	5.24

	 	Accounts
	 	 	100	 
	5.25

	 	Canadian Pension Plans
	 	 	101	 
	 
	 	 	 	 	 	 
	ARTICLE VI

AFFIRMATIVE COVENANTS

	 
	 	 	 	 	 	 
	6.01

	 	Financial Statements
	 	 	101	 
	6.02

	 	Certificates; Other Information
	 	 	103	 
	6.03

	 	Notices
	 	 	105	 
	6.04

	 	Payment of Obligations
	 	 	106	 
	6.05

	 	Preservation of Existence, Etc.
	 	 	106	 
	6.06

	 	Maintenance of Properties
	 	 	106	 
	6.07

	 	Maintenance of Insurance
	 	 	106	 
	6.08

	 	Compliance with Laws
	 	 	106	 
	6.09

	 	Books and Records
	 	 	107	 






ii









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	6.10

	 	Inspections; Appraisals
	 	 	107	 
	6.11

	 	Use of Proceeds
	 	 	107	 
	6.12

	 	Covenant to Guarantee Obligations and Give Security
	 	 	107	 
	6.13

	 	Compliance with Environmental Laws
	 	 	110	 
	6.14

	 	Further Assurances
	 	 	111	 
	6.15

	 	Compliance with Terms of Leaseholds
	 	 	111	 
	6.16

	 	[Reserved]
	 	 	111	 
	6.17

	 	Designation as Senior Debt
	 	 	111	 
	6.18

	 	Collateral Administration
	 	 	111	 
	6.19

	 	Maintenance of Cash Management System
	 	 	113	 
	6.20

	 	Collateral Audit
	 	 	113	 
	6.21

	 	Excluded Real Property
	 	 	113	 
	6.22

	 	Post-Closing Matters
	 	 	114	 
	 
	 	 	 	 	 	 
	ARTICLE VII

NEGATIVE COVENANTS

	 
	 	 	 	 	 	 
	7.01

	 	Liens
	 	 	114	 
	7.02

	 	Investments
	 	 	116	 
	7.03

	 	Indebtedness
	 	 	119	 
	7.04

	 	Fundamental Changes
	 	 	121	 
	7.05

	 	Dispositions
	 	 	122	 
	7.06

	 	Restricted Payments
	 	 	123	 
	7.07

	 	Change in Nature of Business
	 	 	125	 
	7.08

	 	Transactions with Affiliates
	 	 	125	 
	7.09

	 	Burdensome Agreements
	 	 	126	 
	7.10

	 	Use of Proceeds
	 	 	127	 
	7.11

	 	Financial Covenants
	 	 	127	 
	7.12

	 	Amendments of Organization Documents
	 	 	127	 
	7.13

	 	Accounting Changes
	 	 	127	 
	7.14

	 	Prepayments, Etc. of Indebtedness
	 	 	127	 
	7.15

	 	Amendment, Etc. of Related Documents and Indebtedness
	 	 	127	 
	7.16

	 	Equity Interests of the Specified U.S. Borrower and Subsidiaries
	 	 	128	 
	7.17

	 	[Reserved]
	 	 	128	 
	7.18

	 	Designation of Senior Debt
	 	 	128	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

	 
	 	 	 	 	 	 
	8.01

	 	Events of Default
	 	 	128	 
	8.02

	 	Remedies upon Event of Default
	 	 	131	 
	8.03

	 	Application of Funds
	 	 	131	 
	8.04

	 	Collection Allocation Mechanism
	 	 	133	 






iii









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE IX

ADMINISTRATIVE AGENT

	 
	 	 	 	 	 	 
	9.01

	 	Appointment and Authority
	 	 	134	 
	9.02

	 	Rights as a Lender
	 	 	135	 
	9.03

	 	Exculpatory Provisions
	 	 	135	 
	9.04

	 	Reliance by Administrative Agent
	 	 	136	 
	9.05

	 	Delegation of Duties
	 	 	136	 
	9.06

	 	Resignation of Administrative Agent
	 	 	137	 
	9.07

	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	138	 
	9.08

	 	No Other Duties, Etc.
	 	 	138	 
	9.09

	 	Administrative Agent May File Proofs of Claim
	 	 	138	 
	9.10

	 	Collateral and Guaranty Matters
	 	 	139	 
	9.11

	 	Secured Cash Management Agreements and Secured Hedge Agreements
	 	 	139	 
	 
	 	 	 	 	 	 
	ARTICLE X

[RESERVED]

	 
	 	 	 	 	 	 
	ARTICLE XI

MISCELLANEOUS

	 
	 	 	 	 	 	 
	11.01

	 	Amendments, Etc.
	 	 	140	 
	11.02

	 	Notices; Effectiveness; Electronic Communications
	 	 	142	 
	11.03

	 	No Waiver; Cumulative Remedies
	 	 	144	 
	11.04

	 	Expenses; Indemnity; Damage Waiver
	 	 	145	 
	11.05

	 	Payments Set Aside
	 	 	146	 
	11.06

	 	Successors and Assigns
	 	 	147	 
	11.07

	 	Treatment of Certain Information; Confidentiality
	 	 	150	 
	11.08

	 	Right of Setoff
	 	 	151	 
	11.09

	 	Interest Rate Limitation
	 	 	151	 
	11.10

	 	Counterparts; Integration; Effectiveness
	 	 	152	 
	11.11

	 	Survival of Representations and Warranties
	 	 	152	 
	11.12

	 	Severability
	 	 	152	 
	11.13

	 	Replacement of Lenders
	 	 	152	 
	11.14

	 	Governing Law; Jurisdiction; Etc.
	 	 	153	 
	11.15

	 	Waiver of Jury Trial
	 	 	154	 
	11.16

	 	No Advisory or Fiduciary Responsibility
	 	 	154	 
	11.17

	 	Electronic Execution of Assignments and Certain Other Documents
	 	 	155	 
	11.18

	 	USA PATRIOT Act Notice
	 	 	155	 
	11.19

	 	Judgment Currency
	 	 	155	 
	11.20

	 	Language
	 	 	155	 
	11.21

	 	Intercreditor Agreement
	 	 	155	 
	 
	 	 	 	 	 	 
	SIGNATURES	 	 	S-1	 






iv









 






SCHEDULES




	 	 	 
	1.01

	 	Existing Letters of Credit
	 
	 	 
	2.01

	 	Commitments and Applicable Percentages
	 
	 	 
	4.01(a)(vi)

	 	Mortgaged Properties
	 
	 	 
	5.05

	 	Supplement to Interim Financial Statements
	 
	 	 
	5.06

	 	Litigation
	 
	 	 
	5.08(b)

	 	Owned Real Property
	 
	 	 
	5.08(c)(i)

	 	Leased Real Property (Lessee)
	 
	 	 
	5.08(c)(ii)

	 	Leased Real Property (Lessor)
	 
	 	 
	5.09

	 	Environmental Matters
	 
	 	 
	5.13

	 	Subsidiaries and Other Equity Investments; Loan Parties
	 
	 	 
	5.25

	 	Canadian Pension Matters
	 
	 	 
	6.12

	 	Guarantors
	 
	 	 
	6.22

	 	Post-Closing Matters
	 
	 	 
	7.01

	 	Existing Liens
	 
	 	 
	7.02

	 	Existing Investments
	 
	 	 
	7.03(b)

	 	Existing Indebtedness
	 
	 	 
	7.05

	 	Dispositions
	 
	 	 
	7.08

	 	Transactions with Affiliates
	 
	 	 
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






v









 






EXHIBITS




	 	 	 
	Form of	 	 
	 
	 	 
	A

	 	Committed Loan Notice
	 
	 	 
	B

	 	Swing Line Loan Notice
	 
	 	 
	C-1

	 	U.S. Revolving Credit Note
	 
	 	 
	C-2

	 	Canadian Revolving Credit Note
	 
	 	 
	D

	 	Compliance Certificate
	 
	 	 
	E-1

	 	Assignment and Assumption
	 
	 	 
	E-2

	 	Administrative Questionnaire
	 
	 	 
	F-1

	 	U.S. Guaranty
	 
	 	 
	G-1

	 	U.S. Security Agreement
	 
	 	 
	H

	 	Mortgage
	 
	 	 
	I

	 	Intercompany Note
	 
	 	 
	J-1

	 	Opinion Matters — Counsel to Loan Parties
	 
	 	 
	J-2

	 	[Reserved]
	 
	 	 
	J-3

	 	Opinion Matters — Local U.S. Counsel to Loan Parties
	 
	 	 
	K

	 	[Reserved]
	 
	 	 
	L

	 	Borrowing Base Certificate
	 
	 	 
	M-1

	 	Perfection Certificate
	 
	 	 
	M-2

	 	[Reserved]







vi











 





CREDIT AGREEMENT




          This CREDIT AGREEMENT (“Agreement”) is entered into as of May 20, 2008, among NORTEK,
INC., a Delaware corporation (the “Specified U.S. Borrower” and, in its capacity as the
representative of the other Borrowers pursuant to Section 2.15 hereof, the “Borrower
Agent”), Ventrol Air Handling Systems Inc., a Canadian corporation (the “Canadian
Borrower”), the Subsidiaries of the Specified U.S. Borrower from time to time party hereto as
Borrowers and Guarantors, each Lender from time to time party hereto, BANK OF AMERICA, N.A. (with
its successors, “Bank of America”), as Administrative Agent, Collateral Agent, U.S. Swing
Line Lender and U.S. L/C Issuer, BANK OF AMERICA, N.A. (acting through its Canada branch) (with its
successors, “Bank of America-Canada Branch”), as Canadian Swing Line Lender and Canadian
L/C Issuer, BANC OF AMERICA SECURITIES LLC and CREDIT SUISSE SECURITIES (USA) LLC, as Joint Lead
Arrangers, BANC OF AMERICA SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS
CREDIT PARTNERS L.P., as Joint Bookrunners and CREDIT SUISSE SECURITIES (USA) LLC AND GOLDMAN SACHS
CREDIT PARTNERS L.P. and UBS SECURITIES LLC, as Co-Syndication Agents and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Documentation Agent.



PRELIMINARY STATEMENTS:




          The Specified U.S. Borrower and its Subsidiaries intend to refinance certain Indebtedness
under the Existing Credit Agreement, and to pay transaction fees and expenses in connection
therewith, through the issuance and sale of the Senior Secured Notes and the entering into of the
Revolving Credit Facility described herein.



          In furtherance of the foregoing, the Borrowers have requested that the Lenders provide a
revolving credit facility, and the Lenders have indicated their willingness to lend and the L/C
Issuers have indicated its willingness to issue letters of credit, in each case, on the terms and
subject to the conditions set forth herein.



          In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




          1.01 Defined Terms. As used in this Agreement (including the Preliminary Statements),
the following terms shall have the meanings set forth below:



          “2011 Senior Subordinated Notes” means all outstanding 9 7/8% unsecured senior
subordinated notes due 2011 issued by the Specified U.S. Borrower pursuant to the 2011 Senior
Subordinated Notes Indenture.



          “2011 Senior Subordinated Notes Indenture” means the Indenture, dated as of June 12,
2001, as amended and supplemented from time to time, by and among Nortek, Inc. and U.S. Bank
National Association, as successor in interest to State Street Bank and Trust Company.



          “2014 Senior Subordinated Notes” means all outstanding 8.50% unsecured senior
subordinated notes due 2014 issued by the Specified U.S. Borrower, pursuant to the 2014 Senior
Subordinated Notes Indenture.



 









 





          “2014 Senior Subordinated Notes Indenture” means the Indenture dated as of August 27,
2004 among U.S. Bank National Association, the Specified U.S. Borrower and the Guarantors, together
with all instruments and other agreements in connection therewith, as may be amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof, but only to the
extent permitted under the terms of the Loan Documents.



          “ABL Priority Collateral” means the “Revolving Facility Collateral” (as defined in the
Intercreditor Agreement).



          “Account” has the meaning specified in the UCC (or, with respect to a Canadian Loan
Party, the PPSA), and shall include any and all rights of a Loan Party to payment for goods sold or
leased or for services rendered that are not evidenced by an Instrument or Chattel Paper, whether
or not they have been earned by performance.



          “Account Debtor” a Person who is obligated under an Account, Chattel Paper or General
Intangible.



          “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent and, with respect to matters
relating to the Canadian Revolving Credit Facility, means Bank of America-Canada Branch, in its
capacity as Canadian administrative agent under any of the Loan Documents, or any successor
Canadian administrative agent.



          “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrowers and the Lenders.



          “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit E-2 or any other form approved by the Administrative Agent.



          “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



          “Aggregate Commitments” means the Commitments of all the Lenders.



          “Agreement” means this Credit Agreement as modified, amended, supplemented or
restated, and in effect from time to time.



          “AHYDO” has the meaning specified in Section 7.14.



          “Anti-Terrorism Laws” has the meaning specified in Section 5.23(a).



          “Applicable Commitment Fee Rate” means, for each fiscal quarter ending after the
Closing Date, (a) 0.375% per annum, if the Average Revolving Credit Facility Balance during the
immediately preceding fiscal quarter is greater than 66% of the Aggregate Commitments outstanding
during such period, (b) 0.50% per annum, if the Average Revolving Credit Facility Balance during
the immediately preceding fiscal quarter is less than or equal to 66% and greater than 33% of the
Aggregate Commitments outstanding during such period, or (c) 0.625%, if the Average Revolving
Credit Facility Balance during the immediately preceding fiscal quarter is less than or equal to
33% of the Aggregate Commitments outstanding during such period.



2









 





          “Applicable Percentage” means, (a) with respect to any U.S. Appropriate Lender at any
time, the percentage (carried out to the ninth decimal place) of the U.S. Revolving Credit Facility
represented by such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment at such time
and (b) with respect to any Canadian Appropriate Lender at any time, the percentage (carried out to
the ninth decimal place) of the Canadian Revolving Credit Facility represented by such Canadian
Revolving Credit Lender’s Canadian Revolving Credit Commitment at such time. If the commitment of
each Appropriate Lender to make Revolving Credit Loans and the obligation of each L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the
Revolving Credit Commitments have expired, then the Applicable Percentage of each Appropriate
Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable
Percentage of such Appropriate Lender in respect of the Revolving Credit Facility most recently in
effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each
Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.



          “Applicable Rate” means (a) from the Closing Date through the first nine months
following the Closing Date, 1.75% per annum for Base Rate Loans, Canadian Base Rate Loans and
Canadian Prime Rate Loans and 2.75% per annum for Eurodollar Rate Loans and BA Rate Loans and
Letter of Credit Fees and (b) for each fiscal quarter thereafter, the applicable percentage per
annum set forth below determined by reference to Average Excess Availability for the immediately
preceding fiscal quarter:



	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	Base Rate, Canadian
	 	 	Average Excess	 	Eurodollar Rate, BA Rate	 	Base Rate and Canadian
	Pricing Level	 	Availability	 	 and Letter of Credit Fees	 	Prime Rate
	1

	 	> $200,000,000
	 	 	2.50	%	 	 	1.50	%
	2

	 	> $100,000,000
but £
$200,000,000
	 	 	2.75	%	 	 	1.75	%
	3

	 	£ $100,000,000
	 	 	3.00	%	 	 	2.00	%





Any increase or decrease in the Applicable Rate resulting from a change in the Average Excess
Availability shall become effective as of the first calendar day of each fiscal quarter. Average
Excess Availability shall be calculated by the Administrative Agent based on the Administrative
Agent’s records. If the Borrowing Base Certificates (including any required financial information
in support thereof) of the Borrowers are not received by the Administrative Agent by the date
required pursuant to Section 6.01(f) of this Agreement, then, upon the request of the
Required Lenders, the Applicable Rate shall be determined as if the Average Excess Availability for
the immediately preceding fiscal quarter is at Level 3 until such time as such Borrowing Base
Certificates and supporting information are received.



Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).




          “Appropriate Lender” means, at any time, (a) (i) with respect to the U.S. Revolving
Credit Facility, a Lender that has a Commitment with respect to the U.S. Revolving Credit Facility
or holds a U.S. Revolving Credit Loan at such time, (ii) with respect to the U.S. Letter of Credit
Sublimit, (A) the U.S. L/C Issuer and (B) if any U.S. Letters of Credit have been issued pursuant
to Section 2.01(c), the U.S. Revolving Credit Lenders and (iii) with respect to the U.S.
Swing Line Sublimit, (A) the U.S. Swing Line Lender and (B) if any U.S. Swing Line Loans are
outstanding pursuant to Section 2.04(A)(a), the U.S. Revolving Credit Lenders and (b) (i)
with respect to the Canadian Revolving Credit Facility, a



3









 







Lender that has a Commitment with respect to the Canadian Revolving Credit Facility or holds a
Canadian Revolving Credit Loan at such time, (ii) with respect to the Canadian Letter of Credit
Sublimit, (A) the Canadian L/C Issuer and (B) if any Canadian Letters of Credit have been issued
pursuant to Section 2.01(d), the Canadian Revolving Credit Lenders and (iii) with respect
to the Canadian Swing Line Sublimit, (A) the Canadian Swing Line Lender and (B) if any Canadian
Swing Line Loans are outstanding pursuant to Section 2.04(B)(a), the Canadian Revolving
Credit Lenders.



          “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



          “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E-1 or any other form approved by the Administrative Agent.



          “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.



          “Audited Financial Statements” means the audited consolidated balance sheet of the
Specified U.S. Borrower and its Subsidiaries for the fiscal year ended December 31, 2007 and the
related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of the Specified U.S. Borrower and its Subsidiaries, including the notes thereto.



          “Availability Period” means, with respect to each Revolving Credit Facility, the
period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date
of termination of the applicable Revolving Credit Commitments pursuant to Section 2.06, and
(iii) the date of termination of the commitment of each applicable Appropriate Lender to make
Revolving Credit Loans and of the obligation of the applicable L/C Issuer to make L/C Credit
Extensions pursuant to Section 8.02.



          “Availability Reserve” means, on any date of determination and with respect to the
U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, the sum (without
duplication) of (a) reserves for deterioration in the salability of inventory; (b) the Rent and
Charges Reserve; (c) the Bank Product Reserve; (d) all accrued Royalties, whether or not then due
and payable by, in the case of the U.S. Borrowing Base, a U.S. Loan Party or, in the case of the
Canadian Borrowing Base, a Canadian Loan Party; (e) the aggregate amount of liabilities secured by
Liens upon Eligible Collateral that are senior to the Administrative Agent’s Liens (but imposition
of any such reserve shall not waive an Event of Default arising therefrom); (f) the Canadian
Priority Payables Reserve; (g) reserves for excess dilution; and (h) such additional reserves, in
such amounts and with respect to such matters, as the Administrative Agent in its Credit Judgment
may elect to impose from time to time; provided that, after the Closing Date, the
Administrative Agent may adjust the apportionment of the Availability Reserve between the U.S.
Revolving Credit Facility and the Canadian Revolving Credit Facility in its Credit Judgment at such
time; and provided further that such Availability Reserve shall not be established
or changed except upon not



4









 







less than five (5) Business Days’ notice to the Borrowers (unless an Event of Default exists
in which event no notice shall be required). The Administrative Agent will be available during such
period to discuss any such proposed Availability Reserve or change with the Borrowers and without
limiting the right of the Administrative Agent to establish or change such Reserves in
Administrative Agent’s Credit Judgment, the Borrowers may take such action as may be required so
that the event, condition or matter that is the basis for such Availability Reserve no longer
exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent. The
amount of any Availability Reserve established by the Administrative Agent shall have a reasonable
relationship as determined by the Administrative Agent in its Credit Judgment to the event,
condition or other matter that is the basis for the Availability Reserve. Notwithstanding anything
herein to the contrary, an Availability Reserve shall not be established to the extent that it
would be duplicative of any specific item excluded as ineligible in the definitions of Eligible
Collateral, but the Administrative Agent shall retain the right, subject to the requirements of
this paragraph, to establish an Availability Reserve with respect to prospective changes in
Eligible Collateral that may reasonably be anticipated.



          “Average Excess Availability” means, on any date of determination, the amount of
Excess Availability during a stipulated consecutive Business Day period, calendar day period or
fiscal quarter period divided by the number of Business Days or calendar days, as the case may be,
in such period.



          “Average Revolving Credit Facility Balance” means, for any period, the amount obtained
by adding the Outstanding Amount of Loans (less the Outstanding Amount of any Swing Line Loans on
such date) and L/C Obligations at the end of each day for the period in question and by dividing
such sum by the number of days in such period.



          “BA Rate” means, for the Interest Period of each BA Rate Loan, the rate of interest
per annum equal to the average annual rate applicable to Canadian Dollar bankers’ acceptances
having an identical or comparable term as the proposed BA Rate Loan displayed and identified as
such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters
Monitor Money Rates Service as at approximately 10:00 a.m. Toronto time on such day (or, if such
day is not a Business Day, as of 10:00 a.m. Toronto time on the immediately preceding Business
Day), plus five (5) basis points; provided that if such rate does not appear on the
CDOR Page at such time on such date, the rate for such date will be the annual discount rate
(rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Toronto time on such
day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by
the Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances accepted
by it having such specified term (or a term as closely as possible com-parable to such specified
term), plus five (5) basis points.



          “BA Rate Loan” means any Canadian Revolving Credit Loan denominated in Canadian
Dollars bearing interest at a rate determined by reference to the BA Rate.



          “Bank of America” has the meaning specified in the introductory paragraph hereto.



          “Bank of America-Canada Branch” has the meaning specified in the introductory
paragraph hereto.



          “Bank Product” means any of the following products, services or facilities extended to
any Loan Party: (a) cash management services provided by Cash Management Banks under Cash
Management Agreements and (b) products provided by Hedge Banks under Secured Hedge Agreements;
provided, however, that for any of the foregoing to be included as an “Obligation”
for purposes of a distribution under Section 8.03, the applicable Secured Party and the
Loan Party must have previously



5









 







provided written notice to the Administrative Agent of (i) the existence of such Bank Product,
(ii) the maximum dollar amount of obligations arising thereunder to be included as a Bank Product
Reserve (the “Bank Product Amount”), and (iii) the methodology to be used by such parties
in determining the Bank Product Debt owing from time to time. The Bank Product Amount may be
changed from time to time upon written notice to the Administrative Agent by the applicable Secured
Party and Loan Party. No Bank Product Amount may be established or increased at any time that a
Default or Event of Default exists and is continuing, or if a reserve in such amount would cause an
Overadvance.



          “Bank Product Amount” has the meaning specified in the definition of “Bank Product”.



          “Bank Product Debt” means Debt and other obligations of a Loan Party relating to Bank
Products.



          “Bank Product Reserve” means, with respect to the U.S. Borrowing Base or the Canadian
Borrowing Base, the aggregate amount of reserves established by the Administrative Agent from time
to time in its Credit Judgment in respect of Bank Product Debt of the U.S. Loan Parties or the
Canadian Loan Parties, as the case may be, which shall be at least equal to the sum of all Bank
Product Amounts.



          “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



          “Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base
Rate.



          “BIA” means the Bankruptcy and Insolvency Act (Canada).



          “Bookrunners” mean, collectively Banc of America Securities LLC and Credit Suisse
Securities (USA) LLC, in their respective capacities as joint lead arrangers, and Banc of America
Securities LLC, Credit Suisse Securities (USA) LLC and Goldman Sachs Credit Partners L.P., in their
respective capacities as joint bookrunners.



          “Borrower Agent” has the meaning specified in the introductory paragraph hereto.



          “Borrower Materials” has the meaning specified in Section 6.02.



          “Borrowers” mean the Canadian Borrower and the U.S. Borrowers.



          “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the
context may require.



          “Borrowing Base” means any of the U.S. Borrowing Base, the Canadian Borrowing Base
and/or the Total Borrowing Base, as the context may require.



          “Borrowing Base Certificate” means a certificate substantially in the form of
Exhibit L.



6









 





          “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, relative to
matters with respect to the U.S. Revolving Credit Facility, the state where the Administrative
Agent’s Office is located, or relative to matters with respect to the Canadian Revolving Credit
Facility, the jurisdiction where the Administrative Agent’s principal Canadian lending Affiliate or
branch is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar
market.



          “CAM” means the mechanism for the allocation and exchange of interests in the Loans,
participations in Letters of Credit and collections thereunder established pursuant to Section
8.04.



          “CAM Exchange” means the exchange of the Lenders’ interests provided for in
Section 8.04.



          “CAM Exchange Date” means the first date after the Closing Date on which there shall
occur (a) any Event of Default under clause (f) or (g) of Section 8.01 with
respect to a Borrower or (b) an acceleration of Loans pursuant to Section 8.02(b).



          “CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the sum, without duplication, of (i) the Canadian Revolving Credit
Exposure, if any, of such Lender, (ii) the U.S. Revolving Credit Exposure, if any, of such Lender
and (iii) the aggregate amount of any other Obligations otherwise owed to such Lender pursuant to
the Loan Documents, in each case immediately prior to the CAM Exchange Date, and (b) the
denominator shall be the sum of (i) the aggregate U.S. Revolving Credit Exposure of all the
Lenders, (ii) the aggregate Canadian Revolving Exposure of all Lenders and (iii) the aggregate
amount of any other Obligations otherwise owed to any of the Lenders pursuant to the Loan
Documents, in each case immediately prior to the CAM Exchange Date.



          “Canadian ABL Priority Collateral” means ABL Priority Collateral that is Canadian
Collateral.



          “Canadian Account Control Agreements” means, collectively, the Control Agreements
entered into by the Canadian Loan Parties in favor of the Administrative Agent, each in form and
substance reasonably satisfactory to the Administrative Agent.



          “Canadian Availability Condition” has the meaning specified in the definition of
“Canadian Borrowing Base”.



          “Canadian Available Cash” means unrestricted cash collateral of the Canadian Borrower
that does not consist of proceeds of accounts receivable and is pledged to the Administrative Agent
and held in Cash Collateral Accounts at the Administrative Agent. In no event shall any Specified
Issuance Proceeds be classified as Canadian Available Cash.



          “Canadian Base Rate” means, for any day, the rate of interest in effect for such day
as publicly announced from time to time by Bank of America-Canada Branch as its “Base Rate” for
loans in Dollars in Canada. The “Canadian Base Rate” is a rate set by Bank of America-Canada
Branch based upon various factors including Bank of America-Canada Branch’s costs and desired
return, general economic conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate. Any change in such rate
announced by Bank of



7









 







America-Canada Branch shall take effect at the opening of business on the day specified in the
public announcement of such change.



          “Canadian Base Rate Loan” means any Canadian Revolving Credit Loan denominated in
Dollars bearing interest computed by reference to the Canadian Base Rate.



          “Canadian Benefit Plans” means all employee benefit plans, programs or arrangements of
any nature or kind whatsoever that are not Canadian Pension Plans and are maintained or contributed
to by, or to which there is or may be an obligation to contribute by, any Borrower or its
Subsidiaries in respect of its employees or former employees in Canada.



          “Canadian Borrower” has the meaning specified in the introductory paragraph hereto.



          “Canadian Borrowing Base” means, on any date of determination, an amount (calculated
based on the most recent Borrowing Base Certificate delivered to the Administrative Agent in
accordance with this Agreement) equal to



          (a) the sum of



          (i) 85% of the value of the Eligible Receivables of the Canadian Loan Parties,



          (ii) 85% of the NOLV Percentage of the value of the Eligible Inventory of the Canadian Loan
Parties, and



          (iii) (x) 100% of Canadian Available Cash up to $25,000,000 (less the amount of U.S. Available
Cash included in the calculation of the U.S. Borrowing Base at such time) for purposes of
determining whether a Borrowing is permitted or (y) 100% of Canadian Available Cash up to
$10,000,000 (less the amount of U.S. Available Cash included in the calculation of the U.S.
Borrowing Base at such time) for any other purpose under the Loan Documents (including, without
limitation in respect of the determination of whether a Cash Dominion Event or a Covenant Trigger
Event exists or compliance with any test set forth in Article VII),



          minus



          (b) the Availability Reserve to the extent attributable to the Canadian Loan Parties in the
Administrative Agent’s Credit Judgment on such date, provided that, after the Closing Date, the
Administrative Agent may adjust the apportionment of the Availability Reserve between the U.S.
Revolving Credit Facility and the Canadian Revolving Credit Facility in its Credit Judgment;



          provided, further that, notwithstanding anything herein to the contrary: (i) until
such time as the Administrative Agent shall have received satisfactory evidence of completion of
each action set forth on Schedule 6.22 (the “Canadian Availability Condition”), the
“Canadian Borrowing Base” shall be deemed to be nil; and (ii) in the event that the Canadian
Availability Condition has been satisfied but the Administrative Agent has not completed the
Required Audit, the “Canadian Borrowing Base” shall be deemed to be nil until the date of
completion by the Administrative Agent of the Required Audit.



          “Canadian Cash Management Bank” means any Person that, at the time it enters into a
Cash Management Agreement, is a Canadian Lender or an Affiliate of a Canadian Lender, in its
capacity as a party to such Cash Management Agreement, in each case in respect of services provided
under such Cash Management Agreement to a Canadian Loan Party.



8









 





          “Canadian Collateral” means all of the “Collateral” referred to in the Canadian
Collateral Documents and all of the other property that is or is intended under the terms of the
Canadian Collateral Documents to be subject to Liens in favor of the Administrative Agent for the
benefit of the Canadian Secured Parties.



          “Canadian Collateral Documents” means, collectively, the Canadian Security Agreement,
the Canadian Account Control Agreements, each of the collateral assignments, Security Agreement
Supplements, IP Security Agreement Supplements, security agreements, deeds of hypothec, hypothecs,
pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to
Section 6.12, and each of the other agreements, instruments or documents that creates or
purports to create a Lien securing the Canadian Obligations in favor of the Administrative Agent
for the benefit of the Canadian Secured Parties.



          “Canadian Dollar” or “Cdn. $” means Canadian dollars, the lawful currency of
Canada.



          “Canadian Excess Availability” means, at any time, the difference between (a) the
lesser of (i) the Canadian Revolving Credit Facility and (ii) the Canadian Borrowing Base at such
time, as determined from the most recent Borrowing Base Certificate delivered by the Borrower Agent
to the Administrative Agent pursuant to Section 6.01(f) hereof minus (b) the Total
Canadian Revolving Credit Outstandings.



          “Canadian Guarantee” means, collectively, the Guarantees made by the Canadian
Subsidiary Guarantors in favor of the Canadian Secured Parties, each in form and substance
reasonably satisfactory to the Administrative Agent, together with each other guarantee and
guarantee supplement delivered pursuant to Section 6.12.



          “Canadian Hedge Bank” means any Hedge Bank that is party to a Canadian Secured Hedge
Agreement.



          “Canadian L/C Advance” means, with respect to each Canadian Revolving Credit Lender,
such Lender’s funding of its participation in any Canadian L/C Borrowing in accordance with its
Applicable Percentage.



          “Canadian L/C Borrowing” means an extension of credit resulting from a drawing under
any Canadian Letter of Credit which has not been reimbursed on the date when made or refinanced as
a Canadian Revolving Credit Borrowing.



          “Canadian L/C Credit Extension” means, with respect to any Canadian Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase of the amount
thereof.



          “Canadian L/C Issuer” means Bank of America-Canadian Branch in its capacity as issuer
of Canadian Letters of Credit hereunder, or any successor issuer of Canadian Letters of Credit
hereunder.



          “Canadian L/C Obligations” means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Canadian Letters of Credit plus the
aggregate of all Unreimbursed Amounts in respect of Canadian Letters of Credit, including all
Canadian L/C Borrowings. For purposes of computing the amount available to be drawn under any
Canadian Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of determination a
Canadian Letter of Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to be drawn.



9









 





          “Canadian Lender” means each financial institution listed on Schedule 2.01 as
a “Canadian Revolving Credit Lender”, as well as any Person that becomes a “Canadian Revolving
Credit Lender” hereunder pursuant to Section 11.06 and, as the context requires, includes
the Canadian Swing Line Lender.



          “Canadian Letter of Credit” means any standby letter of credit or commercial letter of
credit issued hereunder.



          “Canadian Letter of Credit Sublimit” means an amount equal to $5,000,000. The
Canadian Letter of Credit Sublimit is part of, and not in addition to, the Canadian Revolving
Credit Facility.



          “Canadian Loan” means an extension of credit by a Lender to the Canadian Borrower
under Article II in the form of a Canadian Revolving Credit Loan or a Canadian Swing Line
Loan.



          “Canadian Loan Parties” means the Canadian Borrower and the Canadian Subsidiary
Guarantors.



          “Canadian Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Canadian Loan Party arising under any Loan Document or otherwise with
respect to any Canadian Loan, Canadian Letter of Credit, Canadian Secured Cash Management Agreement
or Canadian Secured Hedge Agreement, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any Canadian Loan
Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as
the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.



          “Canadian Overadvance” has the meaning specified in Section 2.01(f).



          “Canadian Overadvance Loan” means a Canadian Revolving Credit Loan made when an
Overadvance exists or is caused by the funding thereof.



          “Canadian Payment Account” means the Canadian Dollar account and the U.S. Dollar
account of the Administrative Agent to which all monies constituting proceeds of Canadian
Collateral shall be transferred from time to time.



          “Canadian Pension Plans” means each plan, program or arrangement which is required to
be registered as a pension plan under any applicable pension benefits standards or tax statute or
regulation in Canada (or any province or territory thereof) maintained or contributed to by, or to
which there is or may be an obligation to contribute by, any Borrower or its Subsidiaries in
respect of its Canadian employees or former employees.



          “Canadian Prime Rate” means, for any day, a fluctuating rate of interest per annum
equal to the rate of interest in effect for such day as publicly announced from time to time by
Bank of America-Canada Branch as its “Prime Rate.” The “Canadian Prime Rate” is a rate set by Bank
of America-Canada Branch based upon various factors including Bank of America-Canada Branch’s costs
and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America-Canada Branch shall take effect at the opening of business
on the day specified in the public announcement of such change.



10









 





          “Canadian Prime Rate Loan” means any Canadian Revolver Loan denominated in Canadian
Dollars bearing interest computed by reference to the Canadian Prime Rate.



          “Canadian Priority Payables” means, at any time, with respect to the Canadian
Borrowing Base:



          (a) the amount past due and owing by the Canadian Borrower and any other Canadian Loan Party,
or the accrued amount for which each of the Canadian Borrower and any other Canadian Loan Party has
an obligation to remit to a Governmental Authority or other Person pursuant to any applicable Law,
rule or regulation, in respect of (i) pension fund obligations; (ii) employment insurance; (iii)
goods and services taxes, sales taxes, employee income taxes and other taxes payable or to be
remitted or withheld; (iv) workers’ compensation; (v) vacation pay; and (vi) other like charges and
demands; in each case, in respect of which any Governmental Authority or other Person may claim a
security interest, hypothec, prior claim, lien, trust or other claim or Lien ranking or capable of
ranking in priority to or pari passu with one or more of the Liens granted in the Collateral
Documents; and



          (b) the aggregate amount of any other liabilities of the Canadian Borrower and any other
Canadian Loan Parties (i) in respect of which a trust has been or may be imposed on any Collateral
to provide for payment or (ii) which are secured by a security interest, hypothec, prior claim,
pledge, lien, charge, right, or claim or other Lien on any Collateral, in each case, pursuant to
any applicable law, rule or regulation and which trust, security interest, hypothec, prior claim,
pledge, lien, charge, right, claim or Lien ranks or is capable of ranking in priority to or pari
passu with one or more of the Liens granted in the Collateral Documents.



          “Canadian Priority Payables Reserve” means, on any date of determination for the
Canadian Borrowing Base, a reserve established from time to time by the Administrative Agent in its
reasonable Credit Judgment in such amount as the Administrative Agent may determine reflects the
unpaid or unremitted Canadian Priority Payables by the Canadian Loan Parties, which would give rise
to a Lien with priority under applicable Laws over the Lien of the Administrative Agent for the
benefit of the Canadian Secured Parties.



          “Canadian Revolving Credit Borrowing” means a borrowing consisting of simultaneous
Canadian Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans and BA
Rate Loans, having the same Interest Period made by each of the Canadian Revolving Credit Lenders
pursuant to Section 2.01(b) and shall be deemed to include any Canadian Overadvance Loan
and, to the extent attributed to the Canadian Collateral in the Administrative Agent’s Credit
Judgment, Protective Advance made hereunder.



          “Canadian Revolving Credit Commitment” means, as to each Canadian Revolving Credit
Lender, its obligation to (a) make Canadian Revolving Credit Loans to the Canadian Borrower
pursuant to Section 2.01(b), (b) purchase participations in Canadian L/C Obligations, and
(c) purchase participations in Canadian Swing Line Loans, in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01 under the caption “Canadian Revolving Credit Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement.



          “Canadian Revolving Credit Exposure” means, with respect to any Appropriate Lender at
any time, the Outstanding Amount of Canadian Revolving Credit Loans of such Lender plus
such Lender’s Applicable Percentage of the Outstanding Amount of Canadian L/C Obligations with
respect to



11









 







Canadian Letters of Credit plus such Lender’s Applicable Percentage of the Outstanding
Amount of Canadian Swing Line Loans.



          “Canadian Revolving Credit Facility” means, at any time, the aggregate amount of the
Canadian Revolving Credit Lenders’ Canadian Revolving Credit Commitments at such time.



          “Canadian Revolving Credit Lender” means, at any time, any Lender that has a Canadian
Revolving Credit Commitment at such time.



          “Canadian Revolving Credit Loan” has the meaning specified in Section 2.01(b)
and shall be deemed to include any Canadian Overadvance Loan and, to the extent attributed to the
Canadian Collateral in the Administrative Agent’s Credit Judgment, Protective Advance made
hereunder.



          “Canadian Revolving Credit Note” means a promissory note made by the Canadian Borrower
in favor of a Canadian Appropriate Lender evidencing Canadian Revolving Credit Loans or Canadian
Swing Line Loans, as the case may be, made by such Canadian Revolving Credit Lender, substantially
in the form of Exhibit C-2.



          “Canadian Secured Parties” means, collectively, the Administrative Agent, the Canadian
Revolving Credit Lenders, the Canadian L/C Issuer, the Canadian Hedge Banks, the Canadian Cash
Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to
time pursuant to Section 9.05, and the other Persons the Canadian Obligations owing to
which are or are purported to be secured by the Canadian Collateral under the terms of the
Collateral Documents.



          “Canadian Secured Hedge Agreement” means any Secured Hedge Agreement that is entered
into by and between any Canadian Loan Party and any Hedge Bank.



          “Canadian Security Agreement” means, collectively, the Security Agreements and the
deeds of hypothec delivered pursuant to the Canadian Availability Condition and Section
6.12, in each case in respect of the Canadian Collateral, in each case in form and substance
reasonably satisfactory to the Administrative Agent and as amended.



          “Canadian Subsidiary” means any direct or indirect Subsidiary of the Specified U.S.
Borrower which is incorporated or otherwise organized under the laws of Canada or any province or
territory thereof.



          “Canadian Subsidiary Guarantor” means each Canadian Subsidiary (other than the
Canadian Borrower or any Excluded Subsidiary) and each Person that shall, at any time after the
date hereof, become a Canadian Subsidiary and execute and deliver a Canadian Guarantee pursuant to
Section 6.12; it being understood that none of the Canadian Borrower or any Canadian
Subsidiary Guarantors shall guarantee any of the U.S. Obligations.



          “Canadian Swing Line Borrowing” means a borrowing of a Canadian Swing Line Loan
pursuant to Section 2.04.



          “Canadian Swing Line Lender” means Bank of America-Canada Branch in its capacity as
provider of Canadian Swing Line Loans, or any successor swing line lender hereunder.



          “Canadian Swing Line Loan” has the meaning specified in Section 2.04(B)(a).



12









 





          “Canadian Swing Line Sublimit” means an amount equal to $3,000,000. The Canadian
Swing Line Sublimit is part of, and not in addition to, the Canadian Revolving Credit Facility.



          “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations);
provided, however, that Capital Expenditures shall not include any such
expenditures which constitute (a) a Permitted Acquisition, (b) capital expenditures relating to the
construction or acquisition of any property which has been transferred to a Person that is not a
Borrower pursuant to a sale-leaseback transaction permitted under Section 7.05(f), (c) to
the extent permitted by this Agreement, a reinvestment of the Net Cash Proceeds of any Disposition
in accordance with Section 2.05(b)(i) or (ii) (other than any Dispositions under
Sections 7.05(b), (g), (h), (i) and (j)) or any insurance
proceeds paid on account of the loss of or damage to the assets being replaced, substituted,
restored or repaired and the reinvestment of the net cash proceeds of any such Disposition or such
insurance proceeds, (d) the purchase price of equipment purchased substantially contemporaneously
with the trade-in or sale of used or surplus existing equipment to the extent that the gross amount
of such purchase price is reduced by the credit granted to the seller of such equipment (or for the
net proceeds of such sale) for the equipment being traded in or sold at such time, or (f)
capitalized interest relating to the construction of any fixed assets.



          “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



          “Capital Lease Obligation” means, at the time any determination thereof is to be made,
the amount of the liability in respect of a Capitalized Lease that would at that time be required
to be capitalized on a balance sheet in accordance with GAAP.



          “Cash Collateral Account” means a blocked deposit account of one or more of the Loan
Parties at Bank of America (or its Affiliates or branches or at another commercial bank selected in
compliance with Section 6.18) or an account in the name of the Administrative Agent, and in
each case under the sole dominion and control of the Administrative Agent and otherwise established
in a manner reasonably satisfactory to the Administrative Agent.



          “Cash Collateralize” has the meaning specified in Section 2.03(f).



          “Cash Dominion Event” means either (a) the occurrence and continuance of an Event of
Default or (b) the failure of the Loan Parties to maintain Excess Availability of at least 15% of
the lesser of (x) the Aggregate Commitments and (y) the Total Borrowing Base. For purposes of this
Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing (a) so long as such
Event of Default is continuing and has not been cured or waived, and/or (b) if the Cash Dominion
Event arises under clause (b) above, until Excess Availability is equal to or greater than 15% of
the lesser of (x) the Aggregate Commitments and (y) the Total Borrowing Base for thirty (30)
consecutive days, in which case a Cash Dominion Event shall no longer be deemed to be continuing
for purposes of this Agreement.



          “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Borrowers or any of their Subsidiaries free and clear of all Liens (other than Liens
created under the Collateral Documents and other Liens permitted hereunder):




     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America (or Canada) or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof; provided
that the full



13









 







faith and credit of the United States of America (or Canada, as the case may be) is
pledged in support thereof;




     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States
of America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $500,000,000, in each case with maturities of not more than 365 days from the date of
acquisition thereof;




     (c) commercial paper issued by any Person organized under the laws of any state of the
United States of America and rated at least “Prime-1” (or the then equivalent grade) by
Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof;




     (d) Investments, classified in accordance with GAAP as current assets of the Borrowers
or any of their Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that have
the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and maturity described in clauses
(a), (b) and (c) of this definition;




     (e) repurchase agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations; and




     (f) readily marketable direct obligations issued by any state of the United States or
any political subdivision thereof having one of the two highest rating categories obtainable
from either S&P or Moody’s with maturities of not more than twelve (12) months from the date
of acquisition thereof;




provided that instruments equivalent to those referred to in clauses (a)
through (f) above denominated in Canadian Dollars which are comparable in credit
quality and tenor to those referred to above and customarily used by corporations for short
term cash management purposes in Canada shall be permitted to the extent reasonably required
in connection with any business conducted by any Canadian Subsidiary.



          “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



          “Cash Management Bank” means a U.S. Cash Management Bank and/or a Canadian Cash
Management Bank, as the context may require.



          “CCAA” means the Companies’ Creditors Arrangement Act (Canada), as amended or
otherwise modified from time to time and any rule or regulation issued thereunder.



14









 





          “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980.



          “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.



          “CFC” means a Person that is a controlled foreign corporation under Section 957 of the
Code.



          “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



          “Change of Control” means the earlier to occur of:



          (a) the Equity Investors ceasing to have the power, directly or indirectly, to vote or direct
the voting of securities having a majority of the ordinary voting power for the election of
directors of the Specified U.S. Borrower; provided that the occurrence of the foregoing event shall
not be deemed a Change of Control if




     (i) at any time prior to the consummation of a Qualifying IPO, (A) the Equity Investors
otherwise have the right to designate (and do so designate) a majority of the board of
directors of the Specified U.S. Borrower or (B) the Equity Investors own beneficially an
amount of voting stock of the Specified U.S. Borrower equal to more than fifty percent (50%)
of the amount of voting stock of the Specified U.S. Borrower owned by the Equity Investors
of record and beneficially as of the Closing Date and such ownership by the Equity Investors
represents the largest single block of voting securities of the Specified U.S. Borrower held
by any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, but excluding any employee benefit plan of such
person and its subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan), or




     (ii) at any time after the consummation of a Qualifying IPO, (A) no “person” or “group”
(as defined above), excluding the Equity Investors, shall become the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than
the greater of (x) thirty-five percent (35%) of the outstanding voting stock of the
Specified U.S. Borrower or (y) the percentage of the then outstanding voting stock of the
Specified U.S. Borrower owned beneficially by the Equity Investors, (B) during any period of
twelve (12) consecutive months, the board of directors of the Specified U.S. Borrower shall
consist of a majority of the Continuing Directors or (C) the Equity Investors have the
power, directly or indirectly, to vote or direct the voting of at least thirty percent (30%)
of the voting of securities having a majority of the ordinary voting power for the election
of directors of the Specified U.S. Borrower; or



          (b) any “Change of Control” (or any comparable term) in any document pertaining the Senior
Secured Notes or to any Junior Financing with an aggregate outstanding principal amount in excess
of the Threshold Amount; or



15









 





          (c) the Canadian Borrower shall cease to be a wholly owned Subsidiary of the Specified U.S.
Borrower.



          “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.



          “Code” means the Internal Revenue Code of 1986 as amended from time to time.



          “Collateral” means the U.S. Collateral and the Canadian Collateral.



          “Collateral Agent” means Bank of America, in its capacity as “collateral agent”
pursuant to Section 9.02.



          “Collateral Documents” means the U.S. Collateral Documents and the Canadian Collateral
Documents.



          “Commitment” means a Revolving Credit Commitment.



          “Commitment Letter” means the letter agreement, dated May 14, 2008, among the
Specified U.S. Borrower and the Bookrunners and UBS Securities LLC and UBS Loan Finance LLC.



          “Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A.



          “Commodity Account Control Agreements” has the meaning specified in the U.S. Security
Agreement and/or the Canadian Security Agreement, as the context may require.



          “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



          “Consolidated EBITDA” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period and, without duplication, plus: (1)
provision for taxes based on income or profits of such Person and its Subsidiaries for such period,
to the extent that such provision for taxes was deducted in computing such Consolidated Net Income;
plus (2) consolidated interest expense of such Person and its Subsidiaries for such period, whether
or not paid or accrued and whether or not capitalized (including, without limitation, amortization
of debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net of the effect of all payments made or received pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing such Consolidated Net
Income; plus (3) depreciation, amortization (including amortization of the step-up in inventory
valuation arising from purchase accounting and other intangibles) and other non-cash expenses
(excluding any such non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated
Net Income; plus (4) any management fees paid by the Specified U.S. Borrower to Thomas H. Lee
Partners, L.P. or its Affiliates, in such period pursuant to management agreements to the extent
that any such management fees were deducted in computing such Consolidated Net Income; provided
that the maximum aggregate amount of such management fees in any 12-month period payable to Thomas
H. Lee Partners, L.P. or its Affiliates



16









 







shall not exceed the amount described in the Specified U.S. Borrower’s Annual Report on Form
10-K for the fiscal year ended December 31, 2007; plus (5) any reasonable expenses, fees or charges
related to the Transactions or any acquisition or Investment, in each case to the extent that any
such expenses, fees or charges were deducted in computing such Consolidated Net Income; plus (6)
other non-recurring cash charges not to exceed in the aggregate $3.0 million in any fiscal year;
minus (7) non-cash items increasing such Consolidated Net Income for such period, excluding any
items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges
in any period.



          Notwithstanding the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Subsidiary of the Specified
U.S. Borrower shall be added to Consolidated Net Income to compute Consolidated EBITDA of the
Specified U.S. Borrower only to the extent that a corresponding amount would be permitted at the
date of determination to be dividended to the Specified U.S. Borrower by such Subsidiary without
prior governmental approval (that has not been obtained), and without direct or indirect
restriction pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its
stockholders.



          “Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the
ratio of (a) (i) Consolidated EBITDA of the Borrower and its Subsidiaries, less (ii) the
aggregate amount of all Capital Expenditures of or by the Borrower and its Subsidiaries less (iii)
taxes paid or payable in cash by the Borrower and its Subsidiaries (net of refunds received or
receivable) to (b) the sum of (i) Consolidated Net Cash Interest Charges of the Borrower and its
Subsidiaries, and (ii) the aggregate principal amount of all Mandatory Principal Payments, but
excluding (A) any such payments to the extent financed through the incurrence of additional
Indebtedness otherwise expressly permitted under Section 7.03 and (B) any such payments in
respect of seller notes, earn-outs or the Existing Credit Facility in each case made before the
Closing Date, for the most recently complete Measurement Period.



          “Consolidated Net Cash Interest Charges” means, for any Measurement Period, with
respect to any specified Person, the sum, without duplication of: (1) the consolidated interest
expense of such Person and its Subsidiaries for such period, whether paid or accrued, including,
without limitation, amortization of debt issuance costs and original issue discount, noncash
interest payments (other than the amortization of discount or imputed interest arising as a result
of purchase accounting), the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with respect
to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus (2) the consolidated interest of such Person and its
Subsidiaries that was capitalized during such period; plus (3) any interest expense on Indebtedness
of another Person that is Guaranteed by such Person or one of its Subsidiaries or secured by a Lien
on assets of such Person or one of its Subsidiaries, whether or not such Guarantee or Lien is
called upon; plus (4) the product of (a) all dividends and distributions, whether paid or accrued
and whether or not in cash, on any series of preferred stock or Disqualified Equity Interests of
such Person or any of its Subsidiaries, other than dividends on Equity Interests payable solely in
Equity Interests of the Issuer (other than Disqualified Equity Interests) or to the Issuer or a
Subsidiary that is a Guarantor, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and local statutory tax
rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP; minus (5) the amortization or expensing of financing fees and debt discount
incurred by the Issuer and its Subsidiaries including amortization arising from the Transactions
and recognized in the applicable period; minus (6) interest income actually received by the Issuer
or any Subsidiary in cash for such period.



17









 





          “Consolidated Net Income” means, with respect to any specified Person for any period,
the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that:




     (1) the Net Income of any Person that is not a Subsidiary, or that is accounted for by
the equity method of accounting shall be excluded; provided that, to the extent not
previously included, Consolidated Net Income shall be increased by the amount of dividends
or distributions paid in cash to the specified Person or a Subsidiary thereof;




     (2) the Net Income of any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or similar distributions has been legally waived;
provided that Consolidated Net Income of such Person shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash (or to the
extent converted into cash) to such Person or a Subsidiary thereof (subject to provisions of
this clause (2)) during such period, to the extent not previously included therein;




     (3) the Net Income (or loss) of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be excluded;




     (4) the cumulative effect of a change in accounting principles shall be excluded;




     (5) non-cash charges relating to employee benefit or other management compensation
plans of any Parent (to the extent such non-cash charges relate to plans of any Parent for
the benefit of members of the Board of Directors of the Specified U.S. Borrower (in their
capacity as such) or employees of the Specified U.S. Borrower and its Subsidiaries), the
Specified U.S. Borrower or any of its Subsidiaries or any non-cash compensation charge
arising from any grant of stock, stock options or other equity-based awards of any Parent
(to the extent such non-cash charges relate to plans of any Parent for the benefit of
members of the Board of Directors of the Specified U.S. Borrower (in their capacity as such)
or employees of the Specified U.S. Borrower and its Subsidiaries), the Specified U.S.
Borrower or any of its Subsidiaries (excluding in each case any non-cash charge to the
extent that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense incurred in a prior period) in each case, to the
extent that such non-cash charges are deducted in computing such Consolidated Net Income
shall be excluded;




     (6) any non-cash goodwill or other impairment charges resulting from the application of
Statement of Financial Accounting Standards No. 142 or Statement of Financial Accounting
Standards No. 144, and non-cash charges relating to the amortization of intangibles
resulting from the application of Statement of Financial Accounting Standards No. 141, shall
be excluded;




     (7) any increase in cost of sales as a result of the step-up in inventory valuation
arising from applying the purchase method of accounting in accordance with GAAP in
connection with any acquisition consummated after the date of this Indenture, net of taxes,
shall be excluded;



18









 






     (8) unrealized gains and losses relating to hedging transactions and mark-to-market of
Indebtedness denominated in foreign currencies resulting from the application of Statement
of Financial Accounting Standards No. 52 shall be excluded; and




     (9) all restructuring charges, including severance, relocation and transition costs,
shall be excluded.



          “Continuing Directors” shall mean the directors of the Specified U.S. Borrower on the
Closing Date, and each other director, if, in each case, such other director’s nomination for
election to the board of directors of the Specified U.S. Borrower is or was recommended by a
majority of the then Continuing Directors or such other director receives or received the vote of
the Equity Investors in his or her election by the stockholders of the Specified U.S. Borrower.



          “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



          “Control Agreement” has the meaning specified in the U.S. Security Agreement and/or
the Canadian Security Agreement, as the context may require.



          “Covenant Trigger Event” means, at any time, either (a) the occurrence and continuance
of an Event of Default or (b) the failure of the Loan Parties to maintain Excess Availability of at
least the greater of (x) $40,000,000 and (y) 12.5% of the Total Borrowing Base. For purposes of
this Agreement, the occurrence of a Covenant Trigger Event shall be deemed continuing (a) so long
as such Event of Default is continuing and has not been cured or waived and/or (b) if the Covenant
Trigger Event arises under clause (b) above, until Excess Availability is equal to or greater than
the greater of (x) $40,000,000 and (y) 12.5% of the Total Borrowing Base for thirty (30)
consecutive days, in which case a Covenant Trigger Event shall no longer be deemed to be continuing
for purposes of this Agreement. For purposes of determining whether a Covenant Trigger Event shall
have occurred and is continuing, no greater than 25% of Excess Availability shall be composed of
Canadian Excess Availability and no greater than 25% of the Total Borrowing Base shall be composed
of the Canadian Borrowing Base.



          “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



          “Credit Judgment” means the Administrative Agent’s commercially reasonable judgment
exercised in good faith, based upon its consideration of any factor that it reasonably believes (a)
could materially adversely affect the quantity, quality, mix or value of Collateral (including any
Applicable Law that may inhibit collection of an Account), the enforceability or priority of the
Administrative Agent’s Liens, or the amount that the Administrative Agent and the Lenders could
receive in liquidation of any Collateral; (b) suggests that any collateral report or financial
information delivered by any Loan Party is incomplete, inaccurate or misleading in any material
respect; (c) materially increases the likelihood of any Insolvency Proceeding involving a Loan
Party; or (d) creates or could result in an Event of Default. In exercising such judgment, the
Administrative Agent may consider any factors that could materially increase the credit risk of
lending to the Borrowers on the security of the Collateral.




19











 





          “Debtor Relief Laws” means the Bankruptcy Code of the United States, the BIA, the CCAA
and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws
of the United States, Canada or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.



          “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



          “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate, Canadian Base Rate or Canadian Prime
Rate, as applicable plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans,
Canadian Base Rate Loans or Canadian Prime Rate Loans, as the case may be, under the Revolving
Credit Facility plus (iii) 2% per annum; provided, however, that with
respect to a Eurodollar Rate Loan or a BA Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate plus 2% per annum.



          “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject
of a bankruptcy or insolvency proceeding.



          “Deposit Account Control Agreements” has the meaning specified in the U.S. Security
Agreement and/or the Canadian Security Agreement, as the context may require.



          “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person (or the
granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



          “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by
the terms of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Equity Interests (other than Disqualified Equity Interests)),
pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder
thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d)
is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that
would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety one
(91) days after the Maturity Date; provided that if such Equity Interest is issued to any employee
or to any plan for the benefit of employees of the Specified U.S. Borrower or any of its
Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute a
Disqualified Equity Interest solely because it may be required to be repurchased by the Specified
U.S. Borrower or such Subsidiary in order to satisfy applicable statutory or regulatory
obligations; and provided further that any Equity Interest that would constitute a Disqualified
Equity Interest solely because the holders thereof have the right to require the Specified U.S.
Borrower to repurchase such Equity Interest upon the occurrence of a change of control or an asset
sale shall not constitute a Disqualified Equity Interest if the terms of such Equity Interest
provide that the Specified



20









 







U.S. Borrower may not repurchase or redeem any such Equity Interest pursuant to such
provisions prior to the repayment in full of the Obligations.



          “Dollar” and “$” mean lawful money of the United States.



          “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the
equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuers,
as the case may be, at such time on the basis of the Spot Rate in accordance with Section
1.07.



          “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



          “Dominion Account” means any Deposit Account of a Loan Party at Bank of America or its
Affiliates or branches or another bank acceptable to the Administrative Agent, in each case which
is subject to a Deposit Account Control Agreement.



          “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).



          “Eligible Collateral” means, collectively, Eligible Inventory and Eligible
Receivables.



          “Eligible Foreign Receivables” means Accounts payable in a currency other than Dollars
or Canadian Dollars or arising out of sale to debtors outside of the United States and Canada which
in each case are acceptable to the Administrative Agent in its Credit Judgment.



          “Eligible Inventory”  means Inventory of the Loan Parties subject to the
Lien of the Collateral Documents, the value of which shall be determined by taking into
consideration, among other factors, the lowest of its cost and its book value determined in
accordance with GAAP and excluding any portion of cost attributable to intercompany profit among
the Loan Parties and their Affiliates; provided however that, subject to the
ability of the Administrative Agent to establish other criteria of ineligibility in its Credit
Judgment or modify the criteria established below, unless otherwise approved by the Administrative
Agent in its Credit Judgment, none of the following classes of Inventory shall be deemed to be
Eligible Inventory:




     (a) Inventory consisting of “perishable agricultural commodities” within the meaning of
the Perishable Agricultural Commodities Act of 1930, or on which a Lien has arisen or may
arise in favor of agricultural producers under any comparable Laws;




     (b) Inventory that is obsolete, unusable or otherwise unavailable for sale;




     (c) Inventory consisting of promotional, marketing, packaging or shipping materials and
supplies;




     (d) Inventory that fails to meet all standards imposed by any Governmental Authority
having regulatory authority over such Inventory or its use or sale;




     (e) Inventory that is subject to any licensing, patent, royalty, trademark, trade name
or copyright agreement with any third party from which the Borrowers or any of their
Subsidiaries has received notice of a dispute in respect of any such agreement;



21









 






     (f) Inventory (i) with respect to the U.S. Borrowing Base, located outside the United
States and (ii) with respect to the Canadian Borrowing Base, located outside of Canada;




     (g) Inventory that is located on premises owned, leased or rented by a customer of any
Borrower, or is placed on consignment; provided, that Inventory placed on
consignment with an aggregate book value of up to $20,000,000 shall consist of Eligible
Inventory if such Inventory is clearly segregated from all Inventory of such customer, all
UCC and PPSA filings deemed necessary or desirable by the Administrative Agent have been
made, and a reasonably satisfactory Lien Waiver has been delivered to Administrative Agent
by such customer;




     (h) Inventory with respect to which the representations and warranties set forth in the
U.S. Security Agreement or in the Canadian Security Agreement applicable to Inventory are
not correct;




     (i) Inventory in respect of which the U.S. Security Agreement or the Canadian Security
Agreement, as applicable, after giving effect to the related filings of financing statements
that have then been made, if any, does not or has ceased to create a valid and perfected
first priority Lien or security interest in favor of the Administrative Agent, on behalf of
the applicable Secured Parties, securing the applicable Obligations; and




     (j) it is not either (i) otherwise acceptable to or (ii) subject to a reserve
acceptable to, the Administrative Agent, in its Credit Judgment.




If the Administrative Agent deems Inventory ineligible in its Credit Judgment (and not based
upon the criteria set forth above), then the Administrative Agent shall give the Borrower
Agent two (2) Business Days’ prior notice thereof (unless an Event of Default exists, in
which event no notice shall be required).



          “Eligible Receivables” means Accounts of the Loan Parties subject to the Lien of the
Collateral Documents, the value of which shall be determined by taking into consideration, among
other factors, their book value determined in accordance with GAAP, net of any returns, rebates,
discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise
or other taxes) that have been or could be claimed by the Account Debtor or any other Person;
provided, however, that, subject to the ability of the Administrative Agent to
establish other criteria of ineligibility in its Credit Judgment or modify the criteria established
below, unless otherwise approved by the Administrative Agent in its Credit Judgment, none of the
following classes of Accounts shall be deemed to be Eligible Receivables:




     (a) Accounts that do not arise out of sales of goods or rendering of services in the
ordinary course of the Borrowers’ or the relevant Subsidiaries’ business;




     (b) Accounts payable other than in Dollars or, in the case of Canadian Loan Parties,
Dollars or Canadian Dollars, or that are otherwise on terms other than those normal or
customary in the Borrowers’ or the relevant Subsidiaries’ business, except for up to the
Dollar Equivalent of $12,000,000 (in the aggregate, taken together with Eligible Foreign
Receivables included under clause (j) of this definition) in Eligible Foreign
Receivables;




     (c) Accounts arising out of a sale made or services rendered by any Borrower to a
Subsidiary of any Borrower or an Affiliate of any Borrower or to a Person controlled by an
Affiliate of any Borrower (including any employees of such Borrower);



22









 






     (d) Accounts (i) more than 120 days past the original invoice date (other than (A) up
to $6,000,000 of Accounts having extended payment terms which are acceptable to the
Administrative Agent in its Credit Judgment and (B) Accounts in respect of which the account
debtor has provided a letter of credit reasonably acceptable to the Administrative Agent) or
(ii) more than 60 days past the original due date;




     (e) Accounts owing from any Person from which an aggregate amount of more than 50% of
the Accounts owing therefrom is more than 120 days past original invoice date or more than
60 days past the date due;




     (f) Accounts owing from any Person that exceed 20% of the net amount of all Eligible
Accounts, but only to the extent of such excess;




     (g) Accounts owing from any Person that (i) has disputed liability for any Account
owing from such Person or has been placed on credit hold due to past due balances or (ii)
has otherwise asserted any claim, demand or liability against a Borrower or any of its
Subsidiaries, whether by action, suit, counterclaim or otherwise;




     (h) Accounts owing from any Person that shall take or be the subject of any action or
proceeding of a type described in Section 8.01(f);




     (i) Accounts (i) owing from any Person that is also a supplier to or creditor of a
Borrower or any of its Subsidiaries unless such Person has waived any right of setoff in a
manner acceptable to the Administrative Agent, (ii) representing any manufacturer’s or
supplier’s credits, discounts, incentive plans or similar arrangements entitling a Borrower
or any of its Subsidiaries to discounts on future purchase therefrom, (iii) in respect of
which the related invoice(s) has been reversed;




     (j) Accounts arising out of sales to account debtors outside the United States and
Canada, except for up to the Dollar Equivalent of $12,000,000 (in the aggregate, taken
together with Eligible Foreign Receivables included under clause (b) of this
definition) in Eligible Foreign Receivables, unless such Accounts are fully backed by an
irrevocable letter of credit on terms, and issued by a financial institution, acceptable to
the Administrative Agent and such irrevocable letter of credit is in the possession of the
Administrative Agent;




     (k) Accounts arising out of sales on a bill-and-hold, cash in advance or cash on
delivery payment terms, guaranteed sale, sale-or-return, sale on approval or consignment
basis or subject to any right of return, setoff or charge back or Accounts representing any
unapplied cash;




     (l) Accounts owing from an account debtor that is an agency, department or
instrumentality of the United States or any state thereof or Canada or any province or
territory thereof unless the applicable Borrower or its relevant Subsidiary shall have
satisfied the requirements of the Assignment of Claims Act of 1940, or the Financial
Administration Act (Canada) and any similar state, provincial or territorial legislation and
the Administrative Agent is satisfied as to the absence of setoffs, counterclaims and other
defenses on the part of such account debtor;




     (m) Accounts with respect to which the representations and warranties set forth in the
Security Agreement applicable to Accounts are not correct;



23









 






     (n) Accounts in respect of which the applicable Security Agreement, after giving effect
to the related filings of financing statements that have then been made, if any, does not or
has ceased to create a valid and perfected first priority lien or security interest in favor
of the Administrative Agent, on behalf of the Secured Parties, securing the Obligations;




     (o) Accounts relating to the third party billing arrangements with Nordyne, Inc.; and




     (p) it is not either (a) otherwise acceptable to or (b) subject to a reserve acceptable
to, the Administrative Agent, in its Credit Judgment.


If the Administrative Agent deems Accounts ineligible in its Credit Judgment (and not based upon
the criteria set forth above), then the Administrative Agent shall give the Borrower Agent two (2)
Business Days’ prior notice thereof (unless an Event of Default exists, in which event no notice
shall be required).




          “Environmental Laws” means any and all federal, state, provincial, territorial,
municipal, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses, and the common law relating to pollution or the protection of the
environment (including ambient air, indoor air, surface wastes, groundwater, land and subsurface
strata), human health and safety and natural resources including those related to Release or threat
of Release, or exposure to, or generation, storage, treatment, transport, handling, distribution or
disposal of Hazardous Materials.



          “Environmental Liability” means any liability or costs, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Specified U.S. Borrower, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release
of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.



          “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.



          “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



          “Equity Investors” means the Sponsor, the Management Shareholders and the other
members of Investors LLC as of the Closing Date.



          “ERISA” means the Employee Retirement Income Security Act of 1974.



          “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrowers within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



24









 





          “ERISA Event” means (a) (i) the occurrence of a Reportable Event with respect to a
Pension Plan or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Pension Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Pension Plan within the following 30 days; (b) a withdrawal
by the Borrowers or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during
a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrowers or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the Borrowers or any ERISA Affiliate; (g) the
withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan that is a multiple employer
or other plan described in Section 4064(a) of ERISA during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (h) the conditions for imposition
of a lien under Section 303(k) of ERISA or other applicable Laws shall have been met with respect
to any Pension Plan or Canadian Pension Plan; or (i) a determination that any Pension Plan is in
“at risk” status (within the meaning of Section 303 of ERISA).



          “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.



          “Eurodollar Rate Loan” means a Revolving Credit Loan that bears interest at a rate
based on the Eurodollar Rate.



          “Event of Default” has the meaning specified in Section 8.01.



          “Excess Availability” means the sum of U.S. Excess Availability and Canadian Excess
Availability.



          “Excluded Accounts” has the meaning specified in the U.S. Security Agreement and/or
the Canadian Security Agreement, as the context may require.



          “Excluded Earn-Outs” has the meaning specified in the definition of “Indebtedness,”



          “Excluded Real Property” means each parcel of real property set forth on Schedule
7.05.



25









 





          “Excluded Subsidiary” means, on any date, any Subsidiary of the Specified U.S.
Borrower that has less than $100,000 in total assets; (ii) which does not have any Indebtedness
(including by way of Guarantee) in respect of money borrowed (it being understood, without
limitation to the foregoing, that in no event shall any Subsidiary that provides a Guarantee of the
Senior Secured Notes be an Excluded Subsidiary), and (iii) which is not engaged in any substantial
business activities.



          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of a
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which a Loan Party is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower Agent under Section 11.13 and
other than an assignee Lender pursuant to a CAM Exchange under Section 8.04), any United
States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with clause (B) of Section
3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrowers with respect to such withholding tax pursuant to Section
3.01(a)(ii) or (iii).



          “Executive Order” has the meaning specified in Section 5.23(a).



          “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement,
dated as of April 3, 2006, among the Borrowers, Holdings, UBS AG, Stamford Branch, as
administrative agent and the lender parties and other agents party thereto.



          “Existing Letters of Credit” means the letters of credit listed on Schedule
1.01 and outstanding on the Closing Date.



          “Existing NTK Indebtedness” means (a) the 10 3/4% Senior Discount Notes due 2014 of NTK
Holdings, Inc. and (b) Indebtedness outstanding on the Closing Date under the Bridge Loan Agreement
dated as of May 10, 2006, among NTK Holdings, Inc., the financial institutions from time to time
party thereto, and Goldman Sachs Credit Partners L.P., as Administrative Agent (or any notes issued
in exchange therefor pursuant to the terms of such agreement).



          “Extraordinary Receipt” means any proceeds of property or casualty insurance and
condemnation awards (and payments in lieu thereof) relating to any ABL Priority Collateral of the
Loan Parties and their respective Subsidiaries.



          “Facility” means the U.S. Revolving Credit Facility and/or the Canadian Revolving
Credit Facility, as the context may require.



          “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the



26









 







Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative Agent.



          “Fee Letter” means the letter agreement, dated May 14, 2008, among the Specified U.S.
Borrower, the Bookrunners, UBS Securities LLC and UBS Loan Finance LLC, as amended by the amendment
thereto dated as of May 20, 2008.



          “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which a Borrower is resident for tax purposes (including such a Lender when
acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each
State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.



          “Foreign Plan” means any employee benefit plan, program, policy, arrangement or
agreement maintained or contributed to by, or entered into with, the Specified U.S. Borrower or any
Subsidiary with respect to employees employed outside the United States.



          “Foreign Subsidiary” means any direct or indirect Subsidiary of the Specified U.S.
Borrower that is not a Domestic Subsidiary.



          “FRB” means the Board of Governors of the Federal Reserve System of the United States.



          “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



          “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



          “Governmental Authority” means the government of the United States, Canada or any
other nation, or of any political subdivision thereof, whether state, provincial, territorial,
municipal or local, and any agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).



          “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or



27









 







level of income or cash flow of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien); provided that the term “Guarantee” shall not include customary and reasonable
indemnity obligations in effect on the Closing Date or entered into in connection with any
acquisition or Disposition of assets permitted under this Agreement (other than such obligations
with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
The term “Guarantee” as a verb has a corresponding meaning.



          “Guarantors” means, collectively, the Specified U.S. Borrower, the Subsidiaries of the
Specified U.S. Borrower listed on Schedule 6.12 and each other Subsidiary of the Specified
U.S. Borrower that shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12.



          “Guaranties” means the U.S. Guaranty and the Canadian Guarantee.



          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, mold,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



          “Hedge Bank” means any Person that, at the time it enters into a Swap Contract
permitted under Article VI or VII, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Swap Contract.



          “Hedging Obligations” means, with respect to any specified Person, the obligations of
such Person under:




     (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements designed for the purpose of fixing, hedging
or swapping interest rate risk;




     (2) commodity swap agreements, commodity option agreements, forward contracts and other
agreements or arrangements designed for the purpose of fixing, hedging or swapping commodity
price risk; and




     (3) foreign exchange contracts, currency swap agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping foreign currency
exchange rate risk.



          “Holdings” means Nortek Holdings, Inc.



          “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



28









 






     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and not past
due for more than 60 days after the date on which such trade account was created);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person or any
warrant, right or option to acquire such Equity Interest, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing;


; provided that, “Indebtedness” shall not include any post-closing payment adjustments or
earn-out, non-competition or consulting obligations existing on the Closing Date or incurred in
connection with Investments permitted under Section 7.02(h) or (n) (i) if such
obligations are not required to be reflected as a liability on the balance sheet of the applicable
Person or (ii) if at the time of such Investment, the Specified U.S. Borrower was able to satisfy
the tests in Section 7.02(h) or (n), as applicable, after giving pro forma effect
to the maximum possible payment that could result from such adjustment, earn-out or other
obligation as if paid on the date of consummation of such Investment (as certified to the
Administrative Agent in reasonable detail by a Responsible Officer of the Borrower).




          For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



          “Indemnified Taxes” means Taxes other than Excluded Taxes.



          “Indemnitees” has the meaning specified in Section 11.04(b).



          “Information” has the meaning specified in Section 11.07.



29









 





          “Information Memorandum” means the information memorandum intended to be used by the
Bookrunners in connection with the syndication of the Commitments.



          “Intellectual Property Security Agreements” means the U.S. Intellectual Property
Security Agreement and the Canadian Intellectual Property Security Agreement.



          “Intercompany Note” means an intercompany note, substantially in the form of
Exhibit I, executed by the Specified U.S. Borrower and each of its Subsidiaries and
endorsed in blank by each of the U.S. Loan Parties.



          “Intercreditor Agreement” means the Lien Subordination and Intercreditor Agreement
dated as of the date hereof, among the Administrative Agent, on behalf of the U.S. Secured Parties
and the Trustee, on behalf of the “Noteholder Secured Parties” (as defined therein) and the U.S.
Loan Parties.



          “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan or BA Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility
under which such Loan was made; provided, however, that if any Interest Period for
a Eurodollar Rate Loan or a BA Rate Loan exceeds 90 days, the respective dates that fall every 30
days after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan or Swing Line Loan, the first Business Day of each April, July, October and
January and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans
being deemed made under the Revolving Credit Facility for purposes of this definition).



          “Interest Period” means, as to each Eurodollar Rate Loan and BA Rate Loan, the period
commencing on the date such Eurodollar Rate Loan or BA Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan or BA Rate Loan, and ending on the date 30, 60, 90 or 180 days
thereafter, as selected by a Borrower in its Committed Loan Notice or such other period that is 365
days or less requested by a Borrower and consented to by all the Appropriate Lenders;
provided that:




     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar month at the end
of such Interest Period; and




     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.



          “Inventory” has the meaning specified in the UCC or the PPSA, as applicable, and shall
include all goods intended for sale or lease by a Loan Party, or for display or demonstration; all
work in process, all raw materials, and other materials and supplies of every nature and
description used or which might be used in connection with the manufacture, printing, packing,
shipping, advertising, selling, leasing or furnishing such goods or otherwise used or consumed in
such Loan Party’s business (but excluding Equipment).



          “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or



30









 







other acquisition of any other debt or interest in, another Person, or (c) the purchase or
other acquisition (in one transaction or a series of transactions) of assets of another Person that
constitute a business unit or all or a substantial part of the business of, such Person. For
purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment.



          “Investors LLC” means THL — Nortek Investors LLC, a Delaware limited liability
company.



          “IP Rights” has the meaning specified in Section 5.17.



          “IP Security Agreement Supplement” means a supplement delivered in connection with any
Intellectual Property Security Agreement, in each case in form and substance reasonably
satisfactory to the Administrative Agent.



          “IRS” means the United States Internal Revenue Service.



          “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



          “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by an L/C Issuer and a
Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.



          “Junior Financing” has the meaning specified in Section 7.14.



          “Junior Financing Documentation” means the 2014 Senior Subordinated Notes, the 2014
Senior Subordinated Notes Indenture, the 2011 Senior Subordinated Notes, the 2011 Senior
Subordinated Notes Indenture and any documentation governing any other Junior Financing.



          “Laws” means, collectively, all international, foreign, federal, state, provincial,
territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each
case having the force of law.



          “L/C Advance” a U.S. L/C Advance and/or a Canadian L/C Advance, as the context may
require.



          “L/C Borrowing” means a U.S. L/C Borrowing and/or a Canadian L/C Borrowing, as the
context may require.



          “L/C Credit Extension” means a U.S. L/C Credit Extension and/or a Canadian L/C Credit
Extension, as the context may require.



          “L/C Issuer” means the U.S. L/C Issuer and/or the Canadian L/C Issuer, as the context
may require.



31









 





          “L/C Obligations” means the U.S. L/C Obligations and/or the Canadian L/C Obligations,
as the context may require.



          “Lender” means a U.S. Lender and/or a Canadian Lender, as the context may require.



          “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrowers and the Administrative Agent.



          “Letter of Credit” means a U.S. Letter of Credit and/or a Canadian Letter of Credit,
as the context may require.



          “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by an L/C Issuer.



          “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business
Day, the next preceding Business Day).



          “Letter of Credit Fee” has the meaning specified in Section 2.03(h).



          “Letter of Credit Sublimit” means the U.S. Letter of Credit Sublimit and/or the
Canadian Letter of Credit Sublimit, as the context may require.



          “License” means any license or agreement under which a Loan Party is authorized to use
IP Rights in connection with any manufacture, marketing, distribution or disposition of Collateral,
any use of property or any other conduct of its business.



          “Licensor” means any Person from whom a Loan Party obtains the right to use any IP
Rights.



          “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



          “Lien Waiver” means an agreement, in form and substance reasonably satisfactory to the
Administrative Agent, by which (a) for any Collateral located on leased premises, the lessor waives
or subordinates any Lien it may have on the Collateral, and agrees to permit the Administrative
Agent to enter upon the premises and remove the Collateral or to use the premises for an agreed
upon period of time to store or dispose of the Collateral; (b) for any Collateral held by a
warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or
subordinates any Lien it may have on the Collateral, agrees to hold any documents in its possession
relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the
Collateral to the Administrative Agent upon request; (c) for any Collateral held by a repairman,
mechanic or bailee, such Person acknowledges the Administrative Agent’s Lien, waives or
subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to the
Administrative Agent upon request; and (d) for any Collateral subject to a Licensor’s IP Rights,
the Licensor grants to the Administrative Agent the right, vis-à-vis such Licensor, to enforce the



32









 







Administrative Agent’s Liens with respect to the Collateral, including the right to dispose of
it with the benefit of the IP Rights, whether or not a default exists under any applicable License.



          “Loan” means a U.S. Loan and/or a Canadian Loan.



          “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranties, (d) the Intercreditor Agreement, (e) the Collateral Documents, (f) the Fee Letter and
(g) each Issuer Document.



          “Loan Parties” means, collectively, each Borrower and each Guarantor.



          “Management Shareholders” means Richard L. Bready and the other members of management
of the Specified U.S. Borrower or its Subsidiaries who were investors in Investors LLC on the
Closing Date.



          “Mandatory Principal Payments” means all regularly scheduled principal payments or
redemptions or similar acquisitions for value of outstanding Indebtedness for borrowed money of any
Borrower or Guarantor.



          “Material Adverse Effect” means (A) a material adverse change in, or a material
adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent)
or condition (financial or otherwise) of the Specified U.S. Borrower and its Subsidiaries, taken as
a whole; (B) a material impairment of the rights and remedies of the Administrative Agent or any
Lender under any Loan Document, or of the ability of the Borrowers or any Guarantor to perform its
obligations under any loan documentation to which it is a party; or (C) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Borrower or any Guarantor
of any Loan Document to which it is a party.



          “Material Contract” means each contract of the Specified U.S. Borrower or any of its
Subsidiaries relating to any material portion of the Accounts constituting Collateral.



          “Material Foreign Subsidiary” has the meaning specified in Section 6.12(d).



          “Material Real Estate” means any parcel of real property that is fee owned by a U.S.
Loan Party, other than any parcel of real property (i) for which the greater of the cost and the
book value is less than $2,500,000, or (ii) which property is subject to a Lien permitted by
Section 7.01(q) which prohibits the granting of a Lien to the Administrative Agent.



          “March 10-Q” means the Company’s quarterly report on Form 10-Q filed with the SEC on
May 12, 2008.



          “Maturity Date” means, with respect to each of the U.S. Revolving Credit Facility and
the Canadian Revolving Credit Facility, the fifth anniversary of the Closing Date;
provided, however, that if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.



          “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Specified U.S. Borrower.



          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



          “Mortgage” has the meaning specified in Section 4.01(a)(vi).



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          “Mortgage Policy” has the meaning specified in Section 4.01(a)(vi)(B).



          “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



          “Net Cash Proceeds” means, with respect to any Disposition of ABL Priority Collateral
by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the
account of any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash
and Cash Equivalents received in connection with such transaction (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal
amount of any Indebtedness that is secured by the applicable asset and that is required to be
repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (B)
the reasonable and customary out-of-pocket expenses incurred by such Loan Party or such Subsidiary
in connection with such transaction and (C) income taxes reasonably estimated to be actually
payable within two years of the date of the relevant transaction as a result of any gain recognized
in connection therewith; provided that, if the amount of any estimated taxes pursuant to
subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect
of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds.



          “Net Income” means, with respect to any specified Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in respect of preferred
stock dividends, excluding, however: (1) any gain (or loss), together with any related provision
for taxes on such gain (or loss), realized in connection with: (a) any Disposition or (b) the
disposition of any other assets by such Person or any of its Subsidiaries (other than in the
ordinary course of business) or the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries; (2) any extraordinary or nonrecurring gains, losses or charges, together with any
related provision for taxes on such gain, loss or charge; and (3) any gains, losses, or charges of
the Issuer and its Subsidiaries incurred in connection with the Transactions together with any
related provision for taxes on such gain, loss, or charge.



          “NOLV Percentage” means the net orderly liquidation value of Inventory, expressed as a
percentage, expected to be realized at an orderly, negotiated sale held within a reasonable period
of time, net of all liquidation expenses, as determined from the most recent appraisal of the Loan
Parties’ Inventory performed by an appraiser and on terms satisfactory to the Administrative Agent.



          “Not Otherwise Applied” means, with reference to any amount of Net Cash Proceeds of
any transaction or event, that such amount (a) was not required to be applied to prepay the Loans
pursuant to Section 2.05(b) or to prepay the Senior Secured Notes and (b) was not
previously applied in determining the permissibility of a transaction (including, without
limitation, the making of an Investment, Restricted Payment, capital expenditure or refinancing of
Junior Financing) under the Loan Documents where such permissibility was (or may have been)
contingent on receipt of such amount. The Specified U.S. Borrower shall promptly notify the
Administrative Agent of any application of such amount as contemplated by (b) above.



          “Note” means a Revolving Credit Note.



          “NPL” means the National Priorities List under CERCLA.



          “Obligations” means the U.S. Obligations and the Canadian Obligations.



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          “OFAC” has the meaning specified in Section 5.23(b)(v).



          “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



          “Other Taxes” means all present or future stamp or documentary taxes or any other
excise, property intangible, mortgage recording or similar taxes, charges or similar levies arising
from any payment made hereunder or under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.



          “Outstanding Amount” means (a) with respect to Revolving Credit Loans and Swing Line
Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit
Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any
L/C Obligations on any date, the Dollar Equivalent amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by a Borrower of Unreimbursed Amounts.



          “Overadvance” means a U.S. Overadvance and/or a Canadian Overadvance, as the context
may require.



          “Overadvance Loan” means a U.S. Overadvance Loan and/or a Canadian Overadvance Loan,
as the context may require.



          “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the applicable L/C Issuer or the applicable Swing Line Lender, as the case
may be, in accordance with banking industry rules on interbank compensation, and (b) with respect
to any amount denominated in Canadian Dollars, the rate of interest per annum at which overnight
deposits in Canadian Dollars, in an amount approximately equal to the amount with respect to which
such rate is being determined, would be offered for such day by Bank of America-Canada Branch in
the Canadian interbank market for Canadian Dollars to major banks in such interbank market.



          “Participant” has the meaning specified in Section 11.06(d).



          “Payment Item” means each check, draft or other item of payment payable to a Loan
Party, including those constituting proceeds of any Collateral.



          “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).



          “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by any Borrower or any ERISA Affiliate or to which any Borrower or any



35









 







ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years. For greater certainty, “Pension Plan” does not include
any Canadian Pension Plan.



          “Perfection Certificate” shall mean certificates in the form of Exhibit M-1 or
any other form approved by the Administrative Agent, as the same shall be supplemented from time to
time by a Perfection Certificate Supplement or otherwise.



          “Perfection Certificate Supplement” shall mean a perfection certificate supplement in
form and substance reasonably satisfactory to the Administrative Agent.



          “Permitted Acquired Debt” has the meaning specified in Section 7.03(b)(xvii).



          “Permitted Acquisition” has the meaning specified in Section 7.02(h).



          “Permitted Encumbrances” has the meaning specified in the Mortgages.



          “Permitted Equity Issuance” means any sale or issuance of any Equity Interests (other
than Disqualified Equity Interests) of the Specified U.S. Borrower (or capital contributions in
respect thereof) to the extent (a) permitted hereunder and (b) the Net Cash Proceeds thereof are
not required to be applied to the prepayment of the Loans pursuant to Section 2.05(b).



          “Permitted Refinancing” means, with respect to any Person, any modification,
refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided
that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced,
refunded, renewed or extended except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any existing commitments
unutilized thereunder (to the extent such commitments could be drawn at the time of such
refinancing in compliance with this Agreement) or as otherwise permitted pursuant to Section
7.03, (b) such modification, refinancing, refunding, renewal or extension has (i) a final
maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being
modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified,
re-financed, refunded, renewed or extended is subordinated in right of payment to the Obligations,
such modification, refinancing, refunding, renewal or extension is subordinated in right of payment
to the Obligations on terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended,
(d) the terms and conditions (including, if applicable, as to collateral) of any such modified,
refinanced, refunded, renewed or extended Indebtedness are not materially, taken as a whole, less
favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness
being modified, refinanced, refunded, renewed or extended or are on market terms for similar
issuances at the time of such modification, refinancing, refunding, renewal or extension (as
determined in the Administrative Agent’s reasonable discretion), (e) such modification,
refinancing, refunding, renewal or extension is incurred and/or guaranteed by only the Persons who
are the obligors on the Indebtedness being modified, refinanced, refunded, renewed or extended, and
(f) at the time thereof, no Default shall have occurred and be continuing.



          “Permitted Seller Notes” has the meaning specified in Section 7.03(b)(xvii).



36









 





          “Permitted Subordinated Indebtedness” means any unsecured Indebtedness of the
Specified U.S. Borrower that (a) is expressly subordinated to the prior payment in full in cash of
the Obligations on terms and conditions no less favorable to the Lenders than the terms and
conditions of the 2014 Senior Subordinated Notes, (b) will not mature prior to the date that is six
months after the Maturity Date, (c) has no scheduled amortization or payments of principal prior to
the Maturity Date and (d) has covenant, default and remedy provisions no more restrictive, or
mandatory prepayment, repurchase or redemption provisions no more onerous or expansive in scope,
than those contained in the 2014 Senior Subordinated Notes Indenture, taken as a whole;
provided any such Indebtedness shall constitute Permitted Subordinated Indebtedness only if
both before and after giving effect to the issuance or incurrence thereof, no Default or Event of
Default shall have occurred and be continuing.



          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



          “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by any Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate. For greater certainty, “Plan” does not
include any Canadian Benefit Plan or Canadian Pension Plan.



          “Platform” has the meaning specified in Section 6.02.



          “Pledged Debt” means any pledged “Pledged Debt” defined in any Security Agreement and
all other indebtedness from time to time owed to the Loan Parties (including, without limitation,
all promissory notes or instruments, if any, evidencing such indebtedness) and required to be
pledged by the Loan Parties pursuant to the Loan Documents.



          “Pledged Equity” means any pledged “Pledged Equity” defined in any Security Agreement
and all other Equity Interests from time to time acquired, owned or held by the Loan Parties
(including, without limitation, the certificates, if any, representing such Equity Interests) and
required to be pledged by the Loan Parties pursuant to the Loan Documents.



          “PPSA” means the Personal Property Security Act of Ontario; provided that, if
perfection or the effect of perfection or non-perfection or the priority of any security interest
in any Collateral is governed by the PPSA as in effect in a Canadian jurisdiction other than
Ontario, or the Civil Code of Quebec, “PPSA” means the Personal Property Security Act as in effect
from time to time in such other jurisdiction or the Civil Code of Quebec, as applicable, for
purposes of the provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.



          “Protective Advance” has the meaning specified in Section 2.01(g).



          “Public Lender” has the meaning specified in Section 6.02.



          “Qualifying IPO” means the issuance by Specified U.S. Borrower of its common Equity
Interests in an underwritten primary public offering (other than a public offering pursuant to a
registration statement on Form S-8) pursuant to an effective registration statement filed with the
SEC in accordance with the Securities Act (whether alone or in connection with a secondary public
offering).



          “Register” has the meaning specified in Section 11.06(c).



37









 





          “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.



          “Release” means disposing, discharging, injecting, spilling, leaking, leaching,
dumping, emitting, escaping, seeping, or placing into the environment.



          “Rent and Charges Reserve” means (a) with respect to the U.S. Borrowing Base, the
aggregate of (i) all past due rent and other amounts owing by a U.S. Loan Party to any landlord,
warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person
who possesses any Eligible Inventory or could assert a Lien on any Eligible Inventory and (ii) a
reserve equal to two months rent that could be payable to any such Person, unless it has executed a
Lien Waiver and (b) with respect to the Canadian Borrowing Base, the aggregate of (i) all past due
rent and other amounts owing by a Canadian Loan Party to any landlord, warehouseman, processor,
repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible
Inventory or could assert a Lien on any Eligible Inventory and (ii) a reserve equal to two months
rent that could be payable to any such Person, unless it has executed a Lien Waiver.



          “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



          “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



          “Required Audit” means the Administrative Agent’s Collateral due diligence review,
including, without limitation, completion of the field audit and the inventory appraisal in respect
of the ABL Priority Collateral, with results reasonably satisfactory to the Administrative Agent.



          “Required Canadian Lenders” means, as of any date of determination, Lenders holding
more than 50% of the sum of the (a) Total Canadian Outstandings (with the aggregate amount of each
Canadian Revolving Credit Lender’s risk participation and funded participation in Canadian L/C
Obligations and Canadian Swing Line Loans being deemed “held” by such Appropriate Lender for
purposes of this definition) and (b) aggregate unused Canadian Revolving Credit Commitments;
provided that the unused Canadian Revolving Credit Commitment of, and the portion of the
Total Canadian Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Canadian Lenders.



          “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being
deemed “held” by such Appropriate Lender for purposes of this definition) and (b) aggregate unused
Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and
the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.



          “Required U.S. Lenders” means, as of any date of determination, Lenders holding more
than 50% of the sum of the (a) Total U.S. Outstandings (with the aggregate amount of each U.S.
Revolving Credit Lender’s risk participation and funded participation in U.S. L/C Obligations and
U.S. Swing Line Loans being deemed “held” by such Appropriate Lender for purposes of this
definition) and



38









 





(b) aggregate unused U.S. Revolving Credit Commitments; provided that the unused U.S.
Revolving Credit Commitment of, and the portion of the Total U.S. Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a determination of Required U.S.
Lenders.



          “Responsible Officer” means the chief executive officer, president, vice president,
chief financial officer, treasurer, assistant treasurer or controller of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock or other Equity
Interest, or on account of any return of capital to any Person’s stockholders, partners or members
(or the equivalent of any thereof), or any option, warrant or other right to acquire any such
dividend or other distribution or payment.



          “Revolving Credit Borrowing” means a U.S. Revolving Credit Borrowing and/or a Canadian
Revolving Credit Borrowing, as the context may require.



          “Revolving Credit Commitment” means a U.S. Revolving Credit Commitment and/or a
Canadian Revolving Credit Commitment, as the context may require.



          “Revolving Credit Facility” means the U.S. Revolving Credit Facility and/or the
Canadian Revolving Credit Facility, as the context may require.



          “Revolving Credit Lender” means a U.S. Appropriate Lender and/or a Canadian Revolving
Credit Lender, as the context may require.



          “Revolving Credit Loan” has a U.S. Revolving Credit Loan and/or a Canadian Revolving
Credit Loan, as the context may require.



          “Revolving Credit Note” means a U.S. Revolving Credit Note and/or a Canadian Revolving
Credit Note, as the context may require.



          “Royalties” means all royalties, fees, expense reimbursement and other amounts payable
by a Loan Party under a License.



          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.



          “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



          “Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between a Loan Party and any Cash Management Bank.



          “Secured Hedge Agreement” means any Swap Contract permitted under Article VI
or VII that is entered into by and between any Loan Party and any Hedge Bank.



39









 





          “Secured Parties” means the U.S. Secured Parties and the Canadian Secured Parties.



          “Security Agreement” means the U.S. Security Agreement and/or the Canadian Security
Agreement, as the context may require.



          “Security Agreement Supplement” means a supplement delivered in connection with any
Security Agreement, in each case in form and substance reasonably satisfactory to the
Administrative Agent.



          “Securities Account Control Agreements” has the meaning specified in the U.S. Security
Agreement and/or the Canadian Security Agreement, as the context may require.



          “Senior Secured Notes” means the senior secured notes of the Specified U.S. Borrower
in an aggregate principal amount of up to $750,000,000 issued and sold on the Closing Date pursuant
to the Senior Secured Notes Documents and any exchange notes issued in exchange therefor, in each
case, pursuant to the Senior Secured Notes Indenture.



          “Senior Secured Notes Documents” means the Senior Secured Notes Indenture, the
Purchase Agreement dated as of May 13, 2008 among the Specified U.S. Borrower, the Initial
Purchasers( as defined therein) and the guarantors party thereto, the Senior Secured Notes and all
other agreements, instruments and other documents pursuant to which the Senior Secured Notes have
been or will be issued or otherwise setting forth the terms of the Senior Secured Notes.



          “Senior Secured Notes Indenture” means the Indenture, dated as of the date hereof,
among the Specified U.S. Borrower, as “Issuer” and U.S. Bank National Association, as Trustee.



          “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.



          “Specified Issuance Proceeds” means the Net Cash Proceeds of (a) Permitted Equity
Issuances to the Equity Investors or to other Persons making additional equity investments
together with the Equity Investors after the Closing Date and (b) the issuance of Permitted
Subordinated Indebtedness by the Specified U.S. Borrower, in each case held in a segregated account
pending application in accordance with the terms of this Agreement.



          “Specified U.S. Borrower” has the meaning specified in the introductory paragraph
hereto.



          “Sponsor” means Thomas H. Lee Partners, L.P. and its Affiliates.




40












 





          “Sponsor Management Agreement” means the Management Agreement dated August 27, 2004
between THL Managers V, LLC and Holdings, as amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof, but only to the extent permitted under the terms of
the Loan Documents.




          “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Specified U.S. Borrower.




          “Supermajority Lenders” means, as of any date of determination, Lenders holding more
than 66 2/3% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving
Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans
being deemed “held” by such Appropriate Lender for purposes of this definition) and (b) aggregate
unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment
of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall
be excluded for purposes of making a determination of Required Lenders.




          “Supplemental Collateral Agent” has the meaning specified in Section 9.05(a).




          “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.




          “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).




          “Swing Line Borrowing” means a U.S. Swing Line Borrowing and/or a Canadian Swing Line
Borrowing, as the context may require.




41









 








          “Swing Line Lender” means the U.S. Swing Line Lender and/or the Canadian Swing Line
Lender, as the context may require.




          “Swing Line Loan” means a U.S. Swing Line Loan and/or a Canadian Swing Line Loan, as
the context may require.




          “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(A)(b) or 2.04(B)(b), which, if in writing, shall be substantially in
the form of Exhibit B.




          “Swing Line Sublimit” means the U.S. Swing Line Sublimit and/or the Canadian Swing
Line Sublimit, as the context may require.




          “Synthetic Debt” means, with respect to any Person as of any date of determination
thereof, all obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.




          “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).




          “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, remittances, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.




          “Term Priority Collateral” means the “Noteholder Collateral” (as defined in the
Intercreditor Agreement).




          “Threshold Amount” means $25,000,000.




          “Total Borrowing Base” means the sum of the U.S. Borrowing Base and the Canadian
Borrowing Base.




          “Total Canadian Outstandings” means the aggregate Outstanding Amount of all Canadian
Loans and all Canadian L/C Obligations.




          “Total Canadian Revolving Credit Outstandings” means the aggregate Outstanding Amount
of all Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Obligations.




          “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.




          “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.




42









 








          “Total U.S. Outstandings” means the aggregate Outstanding Amount of all U.S. Loans and
all U.S. L/C Obligations.




          “Total U.S. Revolving Credit Outstandings” means the aggregate Outstanding Amount of
all U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Obligations.




          “Transaction” means, collectively, (a) the issuance and sale of the Senior Secured
Notes, (b) the entering into and performance by the U.S. Loan Parties and their applicable
Subsidiaries of the Loan Documents and the Senior Secured Notes Documents to which they are or are
intended to be a party, (c) the refinancing of certain outstanding Indebtedness of the Specified
U.S. Borrower and its Subsidiaries and the termination of all commitments with respect thereto and
(d) the payment of the fees and expenses incurred in connection with the consummation of the
foregoing.




          “Trustee” means U.S. Bank National Association, in its capacity as trustee under the
Senior Secured Notes Indenture.




          “Type” means, with respect to a Loan, its character as a Base Rate Loan, Canadian Base
Rate Loan, Canadian Prime Rate Loan, BA Rate Loan or a Eurodollar Rate Loan.




          “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.




          “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.




          “United States” and “U.S.” mean the United States of America.




          “Unreimbursed Amount” has the meaning specified in Section 2.03(b)(i).




          “U.S. Account Control Agreements” means, collectively, the Control Agreements entered
into by the U.S. Loan Parties in favor of the Administrative Agent, each in form and substance
reasonably satisfactory to the Administrative Agent.




          “U.S. ABL Priority Collateral” means ABL Priority Collateral that is U.S. Collateral.




          “U.S. Available Cash” means unrestricted cash collateral of the Specified U.S.
Borrower that does not constitute proceeds of accounts receivable and is pledged to the
Administrative Agent and held in Cash Collateral Accounts at the Administrative Agent. In no event
shall any Specified Issuance Proceeds be classified as U.S. Available Cash.




          “U.S. Borrowers” means the Specified U.S. Borrower and each Domestic Subsidiary that
becomes a “Guarantor” hereunder after the Closing Date.




43









 








          “U.S. Borrowing Base” means, on any date of determination, an amount (calculated based
on the most recent Borrowing Base Certificate delivered to the Administrative Agent in accordance
with this Agreement) equal to




          (a) the sum of




          (i) 85% of the value of the Eligible Receivables of the U.S. Loan Parties,




          (ii) 85% of the NOLV Percentage of the value of the Eligible Inventory of the U.S. Loan
Parties, and




          (iii) (x) 100% of U.S. Available Cash up to $25,000,000 (less the amount of Canadian Available
Cash included in the calculation of the Canadian Borrowing Base at such time) for purposes of
determining whether a Borrowing is permitted or (y) 100% of U.S. Available Cash up to $10,000,000
(less the amount of Canadian Available Cash included in the calculation of the Canadian Borrowing
Base at such time) for any other purpose under the Loan Documents (including, without limitation in
respect of the determination of whether a Cash Dominion Event or a Covenant Trigger Event exists or
compliance with any test set forth in Article VII),




          minus




          (b) the Availability Reserve to the extent attributable to the U.S. Loan Parties in the
Administrative Agent’s Credit Judgment on such date, provided that, after the Closing Date,
the Administrative Agent may adjust the apportionment of the Availability Reserve between the U.S.
Revolving Credit Facility and the Canadian Revolving Credit Facility in its Credit Judgment;




          provided, further that, notwithstanding anything herein to the contrary, until the date of
completion by the Administrative Agent of the Required Audit, the U.S. Borrowing Base shall be
deemed to be $175,000,000.




          “U.S. Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a U.S. Lender or an Affiliate of a U.S. Lender, in its capacity as a party
to such Cash Management Agreement, in each case in respect of services provided under such Cash
Management Agreement to a U.S. Loan Party.




          “U.S. Collateral” means all of the “Collateral” and “Mortgaged Property” referred to
in the U.S. Collateral Documents and all of the other property that is or is intended under the
terms of the U.S. Collateral Documents to be subject to Liens in favor of the Administrative Agent
for the benefit of the U.S. Secured Parties.




          “U.S. Collateral Documents” means, collectively, the U.S. Security Agreement, the U.S.
Intellectual Property Security Agreement, the U.S. Mortgages, the U.S. Account Control Agreements,
each of the mortgages, collateral assignments, Security Agreement Supplements, IP Security
Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered
to the Administrative Agent pursuant to Section 6.12, and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of the Administrative
Agent for the benefit of the U.S. Secured Parties.




          “U.S. Excess Availability” means, at any time, the difference between (a) the lesser
of (i) (A) the U.S. Revolving Credit Facility and (ii) the U.S. Borrowing Base at such time, as
determined



44









 






from the most recent Borrowing Base Certificate delivered by the Borrower Agent to the
Administrative Agent pursuant to Section 6.01(f) hereof minus (b) the Total U.S.
Revolving Credit Outstandings.




          “U.S. Guaranty” means, collectively, the Guarantees made by the Specified U.S.
Borrower and the U.S. Subsidiary Guarantors in favor of the U.S. Secured Parties, substantially in
the form of Exhibit F-1, together with each other guaranty and guaranty supplement
delivered pursuant to Section 6.12.




          “U.S. Hedge Bank” means any Hedge Bank that is party to a U.S. Secured Hedge
Agreement.




          “U.S. Intellectual Property Security Agreement” has the meaning specified in
Section 4.01(a)(vii).




          “U.S. L/C Advance” means, with respect to each U.S. Revolving Credit Lender, such
Lender’s funding of its participation in any U.S. L/C Borrowing in accordance with its Applicable
Percentage.




          “U.S. L/C Borrowing” means an extension of credit resulting from a drawing under any
U.S. Letter of Credit which has not been reimbursed on the date when made or refinanced as a U.S.
Revolving Credit Borrowing.




          “U.S. L/C Credit Extension” means, with respect to any U.S. Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.




          “U.S. L/C Issuer” means Bank of America in its capacity as issuer of U.S. Letters of
Credit hereunder, or any successor issuer of U.S. Letters of Credit hereunder.




          “U.S. L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding U.S. Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all U.S. L/C Borrowings. For purposes of computing the amount
available to be drawn under any U.S. Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. For all purposes of this Agreement, if on any
date of determination a U.S. Letter of Credit has expired by its terms but any amount may still be
drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.




          “U.S. Lender” means each financial institution listed on Schedule 2.01 as a
“U.S. Revolving Credit Lender”, as well as any Person that becomes a “U.S. Revolving Credit Lender”
hereunder pursuant to Section 11.06 and, as the context requires, includes the U.S. Swing
Line Lender.




          “U.S. Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit. A U.S. Letter of Credit may be a commercial letter of
credit or a standby letter of credit.




          “U.S. Letter of Credit Sublimit” means an amount equal to $60,000,000. The U.S.
Letter of Credit Sublimit is part of, and not in addition to, the U.S. Revolving Credit Facility.




          “U.S. Loan” means an extension of credit by a Lender to the Specified U.S. Borrower
under Article II in the form of a U.S. Revolving Credit Loan or a U.S. Swing Line Loan.




45









 








          “U.S. Loan Party” means any Loan Party that is organized under the laws of one of the
states of the United States of America and that is not a CFC.




          “U.S. Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any U.S. Loan Party arising under any Loan Document or otherwise with
respect to any U.S. Loan, U.S. Letter of Credit, U.S. Secured Cash Management Agreement or U.S.
Secured Hedge Agreement, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any U.S. Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.




          “U.S. Overadvance” has the meaning specified in Section 2.01(e).




          “U.S. Overadvance Loan” means a U.S. Revolving Credit Loan made when an Overadvance
exists or is caused by the funding thereof.




          “U.S. Payment Account” means the account of the Administrative Agent to which all
monies constituting proceeds of U.S. Collateral shall be transferred from time to time.




          “U.S. Revolving Credit Borrowing” means a borrowing consisting of simultaneous U.S.
Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the U.S. Revolving Credit Lenders pursuant to Section
2.01(a) and shall be deemed to include any U.S. Overadvance Loan and U.S. Protective Advance
made hereunder.




          “U.S. Revolving Credit Commitment” means, as to each U.S. Revolving Credit Lender, its
obligation to (a) make U.S. Revolving Credit Loans to the Specified U.S. Borrower pursuant to
Section 2.01(a), (b) purchase participations in U.S. L/C Obligations, and (c) purchase
participations in U.S. Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
under the caption “U.S. Revolving Credit Commitment” or opposite such caption in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement; provided, that at any time that
that Total Canadian Revolving Credit Outstandings exceed 100% of the Canadian Revolving Credit
Commitments, the U.S. Revolving Credit Commitments shall be temporarily reduced by the amount of
such excess until such excess is reduced to zero.




          “U.S. Revolving Credit Exposure” means, with respect to any U.S. Appropriate Lender at
any time, the Outstanding Amount of such Lender’s U.S. Revolving Credit Loans plus such
Lender’s Applicable Percentage of the Outstanding Amount of U.S. L/C Obligations with respect to
U.S. Letters of Credit plus such Lender’s Applicable Percentage of the Outstanding Amount
of U.S. Swing Line Loans.




          “U.S. Revolving Credit Facility” means, at any time, the aggregate amount of the U.S.
Revolving Credit Lenders’ U.S. Revolving Credit Commitments at such time.




          “U.S. Revolving Credit Lender” means, at any time, any Lender that has a U.S.
Revolving Credit Commitment at such time.




          “U.S. Revolving Credit Loan” has the meaning specified in Section 2.01(a) and
shall be deemed to include any U.S. Overadvance Loan and U.S. Protective Advance made hereunder.




46









 








          “U.S. Revolving Credit Note” means a promissory note made by the Specified U.S.
Borrower in favor of a U.S. Appropriate Lender evidencing U.S. Revolving Credit Loans or U.S. Swing
Line Loans, as the case may be, made by such U.S. Revolving Credit Lender, substantially in the
form of Exhibit C-1.




          “U.S. Secured Hedge Agreement” means any Secured Hedge Agreement that is entered into
by and between any U.S. Loan Party and any Hedge Bank.




          “U.S. Secured Parties” means, collectively, the Administrative Agent, the U.S.
Revolving Credit Lenders, the U.S. L/C Issuer, the U.S. Hedge Banks, the U.S. Cash Management
Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant
to Section 9.05, the Canadian Secured Parties and the other Persons the U.S. Obligations
owing to which are or are purported to be secured by the U.S. Collateral under the terms of the
Collateral Documents.




          “U.S. Security Agreement” means the U.S. Security Agreement substantially in the form
of Exhibit G-1 (together with each other security agreement and security agreement
supplement delivered pursuant to Section 6.12 in respect of the U.S. Collateral, in each
case as amended).




          “U.S. Subsidiary Guarantor” means each Domestic Subsidiary (other than the Specified
U.S. Borrower and any Excluded Subsidiary) and each Person that shall, at any time after the date
hereof, become a Domestic Subsidiary.




          “U.S. Swing Line Borrowing” means a borrowing of a U.S. Swing Line Loan pursuant to
Section 2.04.




          “U.S. Swing Line Lender” means Bank of America in its capacity as provider of U.S.
Swing Line Loans, or any successor swing line lender hereunder.




          “U.S. Swing Line Loan” has the meaning specified in Section 2.04(A)(a).




          “U.S. Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and
(b) the U.S. Revolving Credit Facility. The U.S. Swing Line Sublimit is part of, and not in
addition to, the U.S. Revolving Credit Facility.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.




          1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:





     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such



47









 







agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any reference herein to
any Person shall be construed to include such Person’s successors and assigns, (iii) the
words “herein,” “hereof” and “hereunder,” and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending, replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, (vi) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights and (vii) any
references herein to “ordinary course of business” or “ordinary course” shall mean the
ordinary course of business of the Loan Parties and their respective Subsidiaries,
consistent with past practices and undertaken in good faith.




     (b) All other terms contained in this Agreement shall have, when the context so
indicates, the meanings provided for by the UCC or the PPSA to the extent the same are used
or defined therein. For purposes of any Collateral located in the Province of Québec or
charged by any deed of hypothec (or any other Collateral Document) and for all other
purposes pursuant to which the interpretation or construction of a Collateral Document may
be subject to the laws of the Province of Québec or a court or tribunal exercising
jurisdiction in the Province of Québec, (i) “personal property” shall be deemed to include
“movable property,” (ii) “real property” shall be deemed to include “immovable property” and
an “easement” shall be deemed to include a “servitude,” (iii) “tangible property” shall be
deemed to include “corporeal property,” (iv) “intangible property” shall be deemed to
include “incorporeal property,” (v) “security interest” and “mortgage” shall be deemed to
include a “hypothec,” (vi) all references to filing, registering or recording financing
statements or other required documents under the UCC or the PPSA shall be deemed to include
publication under the Civil Code of Quebec, and all references to releasing any Lien shall
be deemed to include a release, discharge and mainlevee of a hypothec, (vii) all references
to “perfection” of or “perfected” Liens shall be deemed to include a reference to the
“opposability” of such Liens to third parties, (viii) any “right of offset,” “right of
setoff” or similar expression shall be deemed to include a “right of compensation”, (ix)
“goods” shall be deemed to include “corporeal movable property” other than chattel paper,
documents of title, instruments, money and securities, and (x) an “agent” shall be deemed to
include a “mandatary.”




     (c) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (d) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



          1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time,



48









 






applied in a manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.




          (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrowers or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower Agent
shall negotiate in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide
to the Administrative Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.




          1.04 Rounding. Any financial ratios required to be maintained by the Borrowers
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).




          1.05 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to New York City time (daylight or standard, as applicable).




          1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Letter of Credit in effect at such time; provided, however, that with respect
to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.




          1.07 Currency Equivalents Generally. Any amount specified in this Agreement (other
than in Articles II, IX and X) or any of the other Loan Documents to be in Dollars shall also
include the equivalent of such amount in any currency other than Dollars, such equivalent amount
thereof in the applicable currency to be determined by the Administrative Agent at such time on the
basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars (including
for calculations of Excess Availability). For purposes of this Section 1.07, the “Spot
Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by
the Person acting in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date of such determination;
provided that the Administrative Agent may obtain such spot rate from another financial institution
designated by the Administrative Agent if the Person acting in such capacity does not have as of
the date of determination a spot buying rate for any such currency.




ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




          2.01 The Loans. (a) U.S. Revolving Credit Borrowings. Subject to the terms
and conditions set forth herein, each U.S. Appropriate Lender severally agrees to make loans (each
such loan, a “U.S. Revolving Credit Loan”) in Dollars to the Specified U.S. Borrower from time to
time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at
any time



49









 






outstanding the amount of such Lender’s U.S. Revolving Credit Commitment; provided, however,
that after giving effect to any U.S. Revolving Credit Borrowing, (i) the Total Revolving Credit
Outstandings shall not exceed the lesser of (x) the Revolving Credit and (y) the Total Borrowing
Base at such time, (ii) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any
Lender, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of
all U.S. L/C Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all U.S. Swing Line Loans shall not exceed such U.S. Revolving Credit
Lender’s U.S. Revolving Credit Commitment and (iii) the Total U.S. Revolving Credit Outstandings
shall not exceed the lesser of (x) the U.S. Revolving Credit Facility and (y) the U.S. Borrowing
Base. Within the limits of each U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment,
and subject to the other terms and conditions hereof, the Specified U.S. Borrower may borrow under
this Section 2.01(a), prepay under Section 2.05, and reborrow under this
Section 2.01(a). U.S. Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.




          (b) Canadian Revolving Credit Borrowings. Subject to the terms and conditions set
forth herein, each Canadian Appropriate Lender severally agrees to make loans (each such loan, a
“Canadian Revolving Credit Loan”) in Dollars and Canadian Dollars to the Canadian Borrower
from time to time, on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Lender’s Canadian Revolving Credit Commitment;
provided, however, that after giving effect to any Canadian Revolving Credit
Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the lesser of (x) the
Revolving Credit Facility and (y) the Total Borrowing Base at such time, (ii) the aggregate
Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Lender, plus such
Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian
L/C Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all Canadian Swing Line Loans shall not exceed such Canadian Revolving Credit
Lender’s Canadian Revolving Credit Commitment and (iii) the Total Canadian Revolving Credit
Outstandings shall not exceed the lesser of (x) the Canadian Revolving Credit Facility and (y) the
Canadian Borrowing Base; and provided further that, no Credit Extensions under the
Canadian Revolving Credit Facility shall be permitted at any time prior to the satisfaction of the
Canadian Availability Condition. Within the limits of each Canadian Revolving Credit Lender’s
Canadian Revolving Credit Commitment, and subject to the other terms and conditions hereof, the
Canadian Borrower may borrow under this Section 2.01(b), prepay under Section 2.05,
and reborrow under this Section 2.01(b). Canadian Revolving Credit Loans denominated in
Dollars may be Canadian Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
Canadian Revolving Credit Loans denominated in Canadian Dollars may be Canadian Prime Rate Loans or
BA Rate Loans, as further provided herein.




          (c) U.S. Letter of Credit Commitment. (i) Subject to the terms and conditions set
forth herein, (A) the U.S. L/C Issuer agrees, in reliance upon the agreements of the U.S. Revolving
Credit Lenders set forth in this Section 2.01(c) and Section 2.03, (1) from time to
time on any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue U.S. Letters of Credit for the account of the Specified U.S. Borrower or
its Subsidiaries, and to amend or extend U.S. Letters of Credit previously issued by it, in
accordance with Section 2.03(a), and (2) to honor drawings under the U.S. Letters of
Credit; and (B) the U.S. Revolving Credit Lenders severally agree to participate in U.S. Letters of
Credit issued for the account of the Specified U.S. Borrower or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any U.S. L/C Credit Extension with respect
to any U.S. Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed the
lesser of (I) the Revolving Credit Facility and (II) the Total Borrowing Base at such time, (x)
the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any Lender, plus
such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C
Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all U.S. Swing Line



50









 






Loans shall not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, (y)
the Total U.S. Revolving Credit Outstandings shall not exceed the lesser of (I) the U.S. Revolving
Credit Facility and (II) the U.S. Borrowing Base, and (z) the Outstanding Amount of the U.S. L/C
Obligations shall not exceed the U.S. Letter of Credit Sublimit. Each request by the Specified
U.S. Borrower for the issuance or amendment of a U.S. Letter of Credit shall be deemed to be a
representation by the Specified U.S. Borrower that the L/C Credit Extension so requested complies
with the conditions set forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Specified U.S. Borrower’s ability to
obtain U.S. Letters of Credit shall be fully revolving, and accordingly the Specified U.S. Borrower
may, during the foregoing period, obtain U.S. Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof.





     (ii) The U.S. L/C Issuer shall not issue any U.S. Letter of Credit if:




     (A) subject to Section 2.03(a)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve months after the date of issuance or last extension,
unless the Required U.S. Lenders have approved such expiry date; or




     (B) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date.




     (iii) The U.S. L/C Issuer shall not be under any obligation to issue any U.S. Letter of
Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the U.S. L/C Issuer from issuing such Letter of
Credit, or any Law applicable to the U.S. L/C Issuer or any request or directive (whether or
not having the force of law) from any Governmental Authority with jurisdiction over the U.S.
L/C Issuer shall prohibit, or request that the U.S. L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall impose upon the
U.S. L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the U.S. L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the U.S. L/C Issuer any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which the U.S. L/C Issuer
in good faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of the
U.S. L/C Issuer applicable to letters of credit generally;




     (C) [reserved];




     (D) such Letter of Credit is to be denominated in a currency other than Dollars; or




     (E) a default of any U.S. Revolving Credit Lender’s obligations to fund under
Section 2.03(b) exists or any U.S. Appropriate Lender is at such time a Defaulting
Lender hereunder, unless the U.S. L/C Issuer has entered into reasonably satisfactory
arrangements with the Specified U.S. Borrower or such Lender to eliminate the U.S. L/C
Issuer’s risk with respect to such Lender.



51









 






     (iv) The U.S. L/C Issuer shall not amend any Letter of Credit if the U.S. L/C Issuer
would not be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.




     (v) The U.S. L/C Issuer shall be under no obligation to amend any Letter of Credit if
(A) the U.S. L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.




     (vi) The U.S. L/C Issuer shall act on behalf of the U.S. Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith, and
the U.S. L/C Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article IX with respect to any acts taken or omissions
suffered by the U.S. L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in Article IX included the U.S.
L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein
with respect to the U.S. L/C Issuer.



          (d) Canadian Letter of Credit Commitment. (i) Subject to the terms and conditions
set forth herein, (A) the Canadian L/C Issuer agrees, in reliance upon the agreements of the
Canadian Revolving Credit Lenders set forth in this Section 2.01(d) and Section
2.03, (1) from time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Canadian Letters of Credit for the account of the
Canadian Borrower or any of its Canadian Subsidiaries, and to amend or extend Canadian Letters of
Credit previously issued by it, in accordance with Section 2.03(a), and (2) to honor
drawings under the Canadian Letters of Credit; and (B) the Canadian Revolving Credit Lenders
severally agree to participate in Canadian Letters of Credit issued for the account of the Canadian
Borrower or any of its Canadian Subsidiaries and any drawings thereunder; provided that
after giving effect to any Canadian L/C Credit Extension with respect to any Canadian Letter of
Credit, (w) the Total Revolving Credit Outstandings shall not exceed the lesser of (I) the
Revolving Credit Facility and (II) the Total Borrowing Base at such time, (x) the aggregate
Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender,
plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding
Amount of all Canadian L/C Obligations, plus such Canadian Revolving Credit Lender’s
Applicable Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed
such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, (y) the Total
Canadian Revolving Credit Outstandings shall not exceed the lesser of (I) the Canadian Revolving
Credit Facility and (II) the Canadian Borrowing Base, and (z) the Outstanding Amount of the
Canadian L/C Obligations shall not exceed the Canadian Letter of Credit Sublimit; and
provided further that, no Credit Extensions under the Canadian Revolving Credit
Facility shall be permitted at any time prior to the satisfaction of the Canadian Availability
Condition. Each request by the Canadian Borrower for the issuance or amendment of a Canadian
Letter of Credit shall be deemed to be a representation by the Canadian Borrower that the L/C
Credit Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof,
the Canadian Borrower’s ability to obtain Canadian Letters of Credit shall be fully revolving, and
accordingly the Canadian Borrower may, during the foregoing period, obtain Canadian Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




          (ii) The Canadian L/C Issuer shall not issue any Canadian Letter of Credit if:




52









 









     (A) subject to Section 2.03(a)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve months after the date of issuance or last extension,
unless the Required Canadian Lenders have approved such expiry date; or




     (B) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date.




     (iii) The Canadian L/C Issuer shall not be under any obligation to issue any Canadian
Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Canadian L/C Issuer from issuing such Letter of
Credit, or any Law applicable to the Canadian L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Canadian L/C Issuer shall prohibit, or request that the Canadian L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Canadian L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Canadian L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date and which the Canadian
L/C Issuer in good faith deems applicable to it, or shall impose upon the Canadian L/C
Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the Canadian L/C Issuer in good faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of the
Canadian L/C Issuer applicable to letters of credit generally;




     (C) [reserved];




     (D) such Letter of Credit is to be denominated in a currency other than Dollars or
Canadian Dollars; or




     (E) a default of any Canadian Revolving Credit Lender’s obligations to fund under
Section 2.03(b) exists or any Canadian Appropriate Lender is at such time a
Defaulting Lender hereunder, unless the Canadian L/C Issuer has entered into reasonably
satisfactory arrangements with the Canadian Borrower or such Lender to eliminate the
Canadian L/C Issuer’s risk with respect to such Lender.




     (iv) The Canadian L/C Issuer shall not amend any Letter of Credit if the Canadian L/C
Issuer would not be permitted at such time to issue such Letter of Credit in its amended
form under the terms hereof.




     (v) The Canadian L/C Issuer shall be under no obligation to amend any Letter of Credit
if (A) the Canadian L/C Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.




     (vi) The Canadian L/C Issuer shall act on behalf of the Canadian Revolving Credit
Lenders with respect to any Letters of Credit issued by it and the documents associated
therewith, and the Canadian L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts taken or
omissions suffered by the Canadian L/C Issuer in connection with Letters of Credit issued by
it or proposed to be issued by



53









 






it and Issuer Documents pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in Article IX included the Canadian L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with respect to
the Canadian L/C Issuer



          (e) U.S. Overadvances. If the aggregate Outstanding Amount of the U.S. Revolving
Credit Loans exceed the U.S. Borrowing Base (“U.S. Overadvance”) at any time, the excess
amount shall be payable by U.S. Borrowers on demand by the Administrative Agent, but all such
excess U.S. Revolving Credit Loans shall nevertheless constitute U.S. Obligations secured by the
U.S. Collateral and entitled to all benefits of the Loan Documents. Unless its authority has been
revoked in writing by Required U.S. Lenders, the Administrative Agent may require the U.S.
Revolving Credit Lenders to honor requests for U.S. Overadvance Loans and to forbear from requiring
the U.S. Borrowers to cure a U.S. Overadvance, when no other Event of Default is known to the
Administrative Agent, as long as (i) the U.S. Overadvance does not continue for more than 45
consecutive days (and no U.S. Overadvance may exist for at least five consecutive days thereafter
before further U.S. Overadvance Loans are required), and (ii) the U.S. Overadvance is not known by
the Administrative Agent to exceed, when taken together with all Canadian Overadvances and all
Protective Advances, the lesser of (x) $25,000,000 and (y) an amount equal to 10% of the Total
Borrowing Base. In no event shall U.S. Overadvance Loans be required that would cause the (A) the
aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any Lender, plus such
U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C
Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all U.S. Swing Line Loans to exceed such U.S. Revolving Credit Lender’s U.S.
Revolving Credit Commitment or (B) the Total U.S. Revolving Credit Outstandings to exceed (x) the
U.S. Revolving Credit Facility minus (y) the Availability Reserve to the extent
attributable to the U.S. Loan Parties in the Administrative Agent’s Credit Judgment at such time.
Any funding of a U.S. Overadvance Loan or sufferance of a U.S. Overadvance shall not constitute a
waiver by the Administrative Agent or the Lenders of the Event of Default caused thereby. In no
event shall any Borrower or other Loan Party be deemed a beneficiary of this Section nor authorized
to enforce any of its terms. At the Administrative Agent’s discretion, U.S. Overadvance Loans made
under this Section 2.01(e) may be made in the form of U.S. Swing Line Loans in accordance
with Section 2.04(A).




          (f) Canadian Overadvances. If the aggregate Outstanding Amount of the Canadian
Revolving Credit Loans exceed the Canadian Borrowing Base (“Canadian Overadvance”) at any
time, the excess amount shall be payable by the Canadian Borrower on demand by the Administrative
Agent, but all such excess Canadian Revolving Credit Loans shall nevertheless constitute Canadian
Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. Unless
its authority has been revoked in writing by the Required Canadian Lenders, the Administrative
Agent may require the Canadian Revolving Credit Lenders to honor requests for Canadian Overadvance
Loans and to forbear from requiring the Canadian Borrower to cure a Canadian Overadvance, when no
other Event of Default is known to the Administrative Agent, as long as (i) the Canadian
Overadvance does not continue for more than 45 consecutive days (and no Canadian Overadvance may
exist for at least five consecutive days thereafter before further Canadian Overadvance Loans are
required), and (ii) the Canadian Overadvance is not known by the Administrative Agent to exceed
$3,000,000 or, when taken together with all U.S. Overadvances and all Protective Advances, the
lesser of (x) $25,000,000 and (y) 10% of the Total Borrowing Base. In no event shall Canadian
Overadvance Loans be required that would cause the (A) the aggregate Outstanding Amount of the
Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such Canadian
Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian L/C
Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all Canadian Swing Line Loans to exceed such Canadian Revolving Credit
Lender’s Canadian Revolving Credit Commitment or (B) the Total Canadian Revolving Credit
Outstandings to exceed (x) the Canadian Revolving Credit Facility minus (y) the



54









 






Availability Reserve to the extent attributable to the Canadian Loan Parties in the Administrative
Agent’s Credit Judgment at such time. Any funding of a Canadian Overadvance Loan or sufferance of
a Canadian Overadvance shall not constitute a waiver by the Administrative Agent or the Lenders of
the Event of Default caused thereby. In no event shall any Borrower or other Loan Party be deemed
a beneficiary of this Section nor authorized to enforce any of its terms. At the Administrative
Agent’s discretion, Canadian Overadvance Loans made under this Section 2.01(f) may be made
in the form of Canadian Swing Line Loans in accordance with Section 2.04(B).




          (g) Protective Advances. The Administrative Agent shall be authorized, in its
discretion, at any time that any conditions in Section 4.02 are not satisfied, to make U.S.
Revolving Credit Loans (any such U.S. Revolving Credit Loans made pursuant to this Section
2.01(g), “U.S. Protective Advances”) or to cause to be made through Bank of
America-Canada Branch as its sub-agent Canadian Revolving Credit Loans (any such Canadian Revolving
Credit Loans made pursuant to this Section 2.01(g), “Canadian Protective Advances”
and, together with the U.S. Protective Advances, the “Protective Advances”) (a) up to an
aggregate amount, when taken together with all U.S. Overadvances and all Canadian Overadvances, the
lesser of (x) $25,000,000 and (y) 10% of the Total Borrowing Base outstanding at any time, if the
Administrative Agent reasonably deems such Loans necessary or desirable to preserve or protect
Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any other
amounts chargeable to Loan Parties under any Loan Documents, including costs, fees and expenses.
Protective Advances shall constitute Obligations secured by the Collateral and shall be entitled to
all of the benefits of the Loan Documents. Immediately upon the making of a Protective Advance,
each applicable Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Administrative Agent a risk participation in such Protective Advance
in an amount equal to the product of such applicable Revolving Credit Lender’s Applicable
Percentage times the amount of such Protective Advance. The Supermajority Lenders may at any time
revoke the Administrative Agent’s authority to make further Protective Advances by written notice
to the Administrative Agent. Absent such revocation, the Administrative Agent’s determination that
funding of a Protective Advance is appropriate shall be conclusive. In no event shall Protective
Advances cause the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans to exceed such
Lender’s Commitment




          2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Revolving Credit
Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans or BA Rate Loans shall be made upon the applicable Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or BA Rate Loans or of any conversion of Eurodollar Rate Loans or BA Rate Loans to Base Rate
Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as the case may be, and (ii) one
Business Day prior to the requested date of any Borrowing of Base Rate Loans, Canadian Base Rate
Loans or Canadian Prime Rate Loans; provided, however, that if the applicable
Borrower wishes to request Eurodollar Rate Loans or BA Rate Loans having an Interest Period other
than 30, 60, 90 or 180 days in duration as provided in the definition of “Interest Period,” the
applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four
Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon
the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00
a.m., three Business Days before the requested date of such Borrowing, conversion or continuation,
the Administrative Agent shall notify the applicable Borrower (which notice may be by telephone)
whether or not the requested Interest Period has been consented to by all the applicable Lenders.
Each telephonic notice by a Borrower pursuant to this Section 2.02(a) must be confirmed



55









 






promptly by delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of such Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or BA Rate Loans shall be in a principal
amount of $5,000,000 or Cdn. $5,000,000, as applicable, or a whole multiple of $1,000,000 or Cdn.
$1,000,000, as applicable, in excess thereof. Except as provided in Sections 2.03(a),
2.04(A)(c) and 2.04(B)(c), each Borrowing of or conversion to Base Rate Loans,
Canadian Base Rate Loans or Canadian Prime Rate Loans shall be in a principal amount of $500,000 or
Cdn. $500,000, as applicable, or a whole multiple of $100,000 or Cdn. $100,000, as applicable, in
excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether a Borrower is requesting a Revolving Credit Borrowing, a conversion of Revolving Credit
Loans from one Type to the other, or a continuation of Eurodollar Rate Loans or BA Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Revolving Credit Loans are to be converted,
(v) if applicable, the duration of the Interest Period with respect thereto and (vi) if applicable,
the currency of the Borrowing, continuation or conversion. If a Borrower fails to specify a Type
of Loan in a Committed Loan Notice or if a Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Revolving Credit Loans shall be made as, or
converted to, Base Rate Loans (in the case of U.S. Revolving Credit Loans), Canadian Base Rate
Loans (in the case of Canadian Revolving Credit Loans denominated in Dollars) or Canadian Prime
Rate Loans (in the case of Canadian Revolving Credit Loans denominated in Canadian Dollars). Any
such automatic conversion to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans
shall be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans or BA Rate Loans. If a Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans or BA Rate Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest
Period of 30 days. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be
converted to a Eurodollar Rate Loan or a BA Rate Loan.




          (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each applicable Lender of the amount of its Applicable Percentage under the applicable
Facility of the applicable Revolving Credit Loans, and if no timely notice of a conversion or
continuation is provided by the applicable Borrower, the Administrative Agent shall notify each
applicable Lender of the details of any automatic conversion to Base Rate Loans, Canadian Base Rate
Loans or Canadian Prime Rate Loans, as applicable, described in Section 2.02(a). In the
case of a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 3:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the applicable Borrower in like funds as received by
the Administrative Agent either by (i) crediting the account of the applicable Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the applicable Borrower; provided, however, that if, on the date a
Committed Loan Notice with respect to a Revolving Credit Borrowing is given by a Borrower, there
are L/C Borrowings outstanding under the applicable Facility, then the proceeds of such Revolving
Credit Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to such Borrower as provided above.




          (c) Except as otherwise provided herein, a Eurodollar Rate Loan and a BA Rate Loan may be
continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan or
BA Rate Loan. During the existence of an Event of Default, (i) no Loans to the U.S. Borrowers may
be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the



56









 






Required U.S. Lenders and (ii) no Loans to the Canadian Borrower may be requested as,
converted to or continued as Eurodollar Rate Loans or BA Rate Loans without the consent of the
Required Canadian Lenders.




          (d) The Administrative Agent shall promptly notify the applicable Borrower and the applicable
Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans and BA
Rate Loans upon determination of such interest rate. At any time that Base Rate Loans, Canadian
Base Rate Loans or Canadian Prime Rate Loans are outstanding, the Administrative Agent shall notify
the applicable Borrower and the applicable Lenders of any change in Bank of America’s or Bank of
America — Canada Branch’s, as applicable, base rate or prime rate used in determining the Base
Rate, Canadian Base Rate or Canadian Prime Rate, as applicable, promptly following the public
announcement of such change.




          (e) After giving effect to all Revolving Credit Borrowings, all conversions of Revolving
Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the
same Type, there shall not be more than ten Interest Periods in effect in respect of the Revolving
Credit Facility




          (f) Anything in this Section 2.02 to the contrary notwithstanding, no Borrower may
select (i) the Eurodollar Rate or the BA Rate for the initial Credit Extension or (ii) Interest
Periods for Eurodollar Rate Loans and BA Rate Loans that have a duration of more than 30 days
during the period from the date hereof to June 30, 2008 (or such earlier date as shall be specified
by the Administrative Agent in a notice to the Borrower Agent and the Lenders).




     2.03 Letters of Credit (i) Procedures for Issuance and Amendment of Letters of
Credit; Auto-Extension Letters of Credit. (a) (i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the applicable Borrower delivered to the
applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer of such
Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer
and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such
later date and time as the Administrative Agent and such L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other
matters as the applicable L/C Issuer may require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail reasonably satisfactory to the applicable L/C Issuer (1) the Letter of Credit to
be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3)
the nature of the proposed amendment; and (4) such other matters as the applicable L/C
Issuer may require. Additionally, the applicable Borrower shall furnish to the applicable
L/C Issuer and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer Documents, as
such L/C Issuer or the Administrative Agent may require.




57









 









     (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with
a copy thereof. Unless the applicable L/C Issuer has received written notice from any
Appropriate Lender under the applicable Facility, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article
IV shall not then be satisfied, then, subject to the terms and conditions hereof, such
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the
applicable Borrower (or the applicable Subsidiary) or enter into the applicable amendment,
as the case may be, in each case in accordance with such L/C Issuer’s usual and customary
business practices. Immediately upon the issuance of each U.S. Letter of Credit, each U.S.
Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the U.S. L/C Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Revolving Credit Lender’s Applicable Percentage times
the amount of such Letter of Credit. Immediately upon the issuance of each Canadian Letter
of Credit, each Canadian Appropriate Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Canadian L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s
Applicable Percentage times the Outstanding Amount of such Letter of Credit.




     (iii) If a Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit
such L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the applicable L/C Issuer, the a Borrower shall not be
required to make a specific request to such L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders under the
applicable Facility shall be deemed to have authorized (but may not require) the applicable
L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date; provided, however, that
such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined
that it would not be permitted, or would have no obligation at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day that is seven
Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that
the Required U.S. Lenders (in the case of the U.S. Letters of Credit) or the Required
Canadian Lenders (in the case of Canadian Letters of Credit) have elected not to permit such
extension or (2) from the Administrative Agent, any Appropriate Lender under the applicable
Facility or a Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied, and in each such case directing the applicable
L/C Issuer not to permit such extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
applicable L/C Issuer will also deliver to the applicable Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.



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          (b) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
applicable L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof.
Not later than 11:00 a.m. on the date of any payment by the applicable L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), the applicable Borrower shall reimburse such L/C
Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the
applicable Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent
shall promptly notify each Appropriate Lender under the applicable Facility of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Revolving Credit Lender’s Applicable Percentage thereof. In such event, the applicable Borrower
shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans (in the case of
U.S. Letters of Credit) or Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable (in
the case of Canadian Letters of Credit) to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate
Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments
under the applicable Facility and the conditions set forth in Section 4.02 (other than the
delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(b)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice. In the case of a Letter of Credit
denominated in a currency other than Dollars, the applicable Borrower shall reimburse the
applicable L/C Issuer in such currency, unless (A) such L/C Issuer (at its option) shall have
specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of
any such requirement for reimbursement in Dollars, such Borrower shall have notified such L/C
Issuer promptly following receipt of the notice of drawing that such Borrower will reimburse such
L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a
Letter of Credit denominated in a currency other than Dollars, the applicable L/C Issuer shall
notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly
following the determination thereof.





     (ii) Each Appropriate Lender under the applicable Facility shall upon any notice
pursuant to Section 2.03(b)(i) make funds available to the Administrative Agent for
the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount
equal to its Applicable Percentage of the Dollar Equivalent of the Unreimbursed Amount not
later than 3:00 p.m. on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.03(b)(iii), each
Appropriate Lender that so makes funds available shall be deemed to have made a Base Rate
Loan, Canadian Base Rate Loan or Canadian Prime Rate Loan, as applicable, to the applicable
Borrower in such amount. The Administrative Agent shall remit the funds so received to the
applicable L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans (or Canadian Base Rate Loans or Canadian Prime
Rate Loans, as the case may be) because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have
incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such event, each
Appropriate Lender’s payment to the Administrative Agent for the account of the applicable
L/C Issuer pursuant to Section 2.03(b)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.



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     (iv) Until each applicable Appropriate Lender funds its Revolving Credit Loan or L/C
Advance pursuant to this Section 2.03(b) to reimburse the applicable L/C Issuer for
any amount drawn under any applicable Letter of Credit, interest in respect of such Lender’s
Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.




     (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C
Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(b), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against such L/C Issuer, any Borrower or
any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Credit Lender’s obligation
to make Revolving Credit Loans pursuant to this Section 2.03(b) is subject to the
conditions set forth in Section 4.02 (other than delivery by the applicable Borrower
of a Committed Loan Notice ). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of a Borrower to reimburse the applicable L/C Issuer for the amount of
any payment made by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.




     (vi) If any Appropriate Lender fails to make available to the Administrative Agent for
the account of an L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(b) by the time specified in Section
2.03(b)(ii), the applicable L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the Overnight Rate,
plus any administrative, processing or similar fees customarily charged by such L/C Issuer
in connection with the foregoing. If such Lender pays such amount (with interest and fees
as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the
relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may
be. A certificate of an L/C Issuer submitted to any Appropriate Lender (through the
Administrative Agent) with respect to any amounts owing under this Section
2.03(b)(vi) shall be conclusive absent manifest error.



          (c) Repayment of Participations. (i) At any time after an L/C Issuer has made a
payment under any Letter of Credit and has received from any Appropriate Lender such Lender’s L/C
Advance in respect of such payment in accordance with Section 2.03(b), if the
Administrative Agent receives for the account of such L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from a Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same
funds as those received by the Administrative Agent.





     (ii) If any payment received by the Administrative Agent for the account of an L/C
Issuer pursuant to Section 2.03(b)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by an L/C Issuer in its discretion), each Appropriate Lender under the
applicable Facility shall pay to the Administrative Agent for the account of such L/C Issuer
its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Overnight Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



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          (d) Obligations Absolute. The obligation of the Borrowers to reimburse the applicable
L/C Issuers for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:





     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that any
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the applicable L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the applicable L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver, interim receiver, monitor or
other representative of or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, any Borrower or any of its Subsidiaries.



          The applicable Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such
Borrower’s instructions or other irregularity, such Borrower will immediately notify the applicable
L/C Issuer. Each Borrower shall be conclusively deemed to have waived any such claim against the
applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.



          (e) Role of L/C Issuer. Each Lender and each Borrower agrees that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Revolving Credit Lenders under the
applicable Facility or the Required U.S. Lenders or Required Canadian Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or instrument related to
any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude
such



61









 







Borrowers’ pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of any L/C
Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v)
of Section 2.03(d); provided, however, that anything in such clauses to the
contrary notwithstanding, a Borrower may have a claim against an L/C Issuer, and such L/C Issuer
may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by such Borrower which such Borrower proves were
caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuers may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuers shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



          (f) Cash Collateral. Upon the request of the Administrative Agent, (i) if an L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the applicable Borrowers shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all applicable L/C Obligations.
Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and
Section 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver
or hypothecate to the Administrative Agent, for the benefit of the applicable L/C Issuers and the
Appropriate Lenders, as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent
and the applicable L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the applicable L/C Issuer and the Appropriate Lenders, a
security interest in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America or Bank of America — Canada Branch, as applicable. If at any time the
Administrative Agent determines that any funds held as Cash Collateral are subject to any right or
claim of any Person other than the Administrative Agent or that the total amount of such funds is
less than the aggregate Outstanding Amount of all applicable L/C Obligations, the applicable
Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent,
as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such
aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash
Collateral that the Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral,
such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the
applicable L/C Issuer.



          (g) Applicability of ISP and UCP. Unless otherwise expressly agreed by an L/C Issuer
and the applicable Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time of issuance shall
apply to each commercial Letter of Credit.



          (h) Letter of Credit Fees. The U.S. Borrowers shall pay to the Administrative Agent
for the account of each U.S. Appropriate Lender in accordance with its Applicable Percentage, and
the



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Canadian Borrower shall pay to the Administrative Agent for the account of each Canadian
Appropriate Lender in accordance with its Applicable Percentage, a Letter of Credit fee (the
“Letter of Credit Fee”) for each U.S. Letter of Credit or Canadian Letter of Credit, as
applicable, equal to the Applicable Rate times the daily amount available to be drawn under
such Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first Business Day
of each April, July, October and January, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand
and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each standby Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.



          (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
applicable Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit, at the rate of 0.125% per annum, computed on the daily
amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the first Business Day of each April, July, October and
January in respect of the most recently-ended quarterly period (or portion thereof, in the case of
the first payment), commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. In addition, the
applicable Borrower shall pay directly to the applicable L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.



          (j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



          (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, each applicable Borrower shall be obligated to reimburse the applicable L/C
Issuer hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the
businesses of such Subsidiaries.



          2.04 Swing Line Loans.



          (A) (a) The U.S. Swing Line. Subject to the terms and conditions set forth herein,
the U.S. Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth
in this Section 2.04(A), to make loans (each such loan, a “U.S. Swing Line Loan”)
in Dollars to the Specified U.S. Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the
U.S. Swing Line Sublimit, notwithstanding the fact that such U.S. Swing Line Loans, when aggregated
with the Applicable Percentage of the Outstanding Amount of U.S. Revolving Credit Loans and U.S.
L/C Obligations of the Lender acting as U.S. Swing Line Lender, may exceed the amount of such
Lender’s U.S. Revolving Credit Commitment; provided, however, that after giving
effect to any U.S. Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed
the lesser of (x) the Revolving Credit Facility and



63









 







(y) the Total Borrowing Base at such time, (ii) the aggregate Outstanding Amount of the U.S.
Revolving Credit Loans of any Lender, plus such U.S. Revolving Credit Lender’s Applicable
Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S. Revolving
Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. Swing Line Loans shall
not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment and (iii) the Total
U.S. Revolving Credit Outstandings shall not exceed the lesser of (x) the U.S. Revolving Credit
Facility and (y) the U.S. Borrowing Base; and provided that, at no time prior to the date
of completion by the Administrative Agent of the Required Audit shall Total U.S. Outstandings
exceed $175,000,000; and provided further that the Specified U.S. Borrower shall
not use the proceeds of any U.S. Swing Line Loan to refinance any outstanding U.S. Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions hereof, the Specified
U.S. Borrower may borrow under this Section 2.04(A), prepay under Section 2.05, and
reborrow under this Section 2.04(A). Each U.S. Swing Line Loan shall bear interest only at
a rate based on the Base Rate. Immediately upon the making of a U.S. Swing Line Loan, each U.S.
Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the U.S. Swing Line Lender a risk participation in such U.S. Swing Line Loan in an
amount equal to the product of such U.S. Revolving Credit Lender’s Applicable Percentage
times the amount of such U.S. Swing Line Loan.



          (b) Borrowing Procedures. Each U.S. Swing Line Borrowing shall be made upon the
Specified U.S. Borrower’s irrevocable notice to the U.S. Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the U.S. Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and
shall specify (i) the amount to be borrowed and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery to the U.S. Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Specified U.S. Borrower. Promptly after
receipt by the U.S. Swing Line Lender of any telephonic Swing Line Loan Notice, the U.S. Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not, the U.S. Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the U.S. Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any U.S. Revolving Credit Lender) prior to 2:00
p.m. on the date of the proposed U.S. Swing Line Borrowing (A) directing the U.S. Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to
the first sentence of Section 2.04(A)(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the U.S. Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Specified U.S. Borrower.



          (c) Refinancing of U.S. Swing Line Loans. (i) The U.S. Swing Line Lender at any time
in its sole and absolute discretion (but at least once per week) may request, on behalf of the
Specified U.S. Borrower (which hereby irrevocably authorizes the U.S. Swing Line Lender to so
request on its behalf), that each U.S. Appropriate Lender make a Base Rate Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of U.S. Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a Committed Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the U.S. Revolving Credit Facility and the
conditions set forth in Section 4.02. The U.S. Swing Line Lender shall furnish the
Specified U.S. Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each U.S. Appropriate Lender shall make an
amount equal to its Applicable Percentage of the amount specified in such Committed Loan



64









 







Notice available to the Administrative Agent in immediately available funds for the account of
the U.S. Swing Line Lender at the Administrative Agent’s Office not later than 3:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section 2.04(A)(c)(ii), each
U.S. Appropriate Lender that so makes funds available shall be deemed to have made a Base Rate Loan
to the Specified U.S. Borrower in such amount. The Administrative Agent shall remit the funds so
received to the U.S. Swing Line Lender.




     (ii) If for any reason any U.S. Swing Line Loan cannot be refinanced by such a U.S.
Revolving Credit Borrowing in accordance with Section 2.04(A)(c)(i), the request
for Base Rate Loans submitted by the U.S. Swing Line Lender as set forth herein shall be
deemed to be a request by the U.S. Swing Line Lender that each of the U.S. Revolving Credit
Lenders fund its risk participation in the relevant U.S. Swing Line Loan and each U.S.
Revolving Credit Lender’s payment to the Administrative Agent for the account of the U.S.
Swing Line Lender pursuant to Section 2.04(A)(c)(i) shall be deemed payment in
respect of such participation.




     (iii) If any U.S. Appropriate Lender fails to make available to the Administrative
Agent for the account of the U.S. Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.04(A)(c) by the time
specified in Section 2.04(A)(c)(i), the U.S. Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the U.S. Swing Line Lender at a rate per
annum equal to the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the U.S. Swing Line Lender in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Revolving Credit Loan included in the relevant Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be. A certificate of the
U.S. Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




     (iv) Each U.S. Revolving Credit Lender’s obligation to make U.S. Revolving Credit Loans
or to purchase and fund risk participations in U.S. Swing Line Loans pursuant to this
Section 2.04(A)(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the U.S. Swing Line Lender, any Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each U.S. Revolving Credit Lender’s obligation to
make U.S. Revolving Credit Loans pursuant to this Section 2.04(A)(c) is subject to
the conditions set forth in Section 4.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line Loans,
together with interest as provided herein.



          (d) Repayment of Participations. (i) At any time after any U.S. Appropriate Lender
has purchased and funded a risk participation in a U.S. Swing Line Loan, if the U.S. Swing Line
Lender receives any payment on account of such Swing Line Loan, the U.S. Swing Line Lender will
distribute to such Appropriate Lender its Applicable Percentage thereof in the same funds as those
received by the U.S. Swing Line Lender.




     (ii) If any payment received by the U.S. Swing Line Lender in respect of principal or
interest on any U.S. Swing Line Loan is required to be returned by the U.S. Swing Line
Lender under any of the circumstances described in Section 11.05 (including pursuant
to any settlement



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entered into by the U.S. Swing Line Lender in its discretion), each U.S. Appropriate
Lender shall pay to the U.S. Swing Line Lender its Applicable Percentage thereof on demand
of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the Overnight Rate. The
Administrative Agent will make such demand upon the request of the U.S. Swing Line Lender.
The obligations of the Lenders under this clause shall survive the payment in full of the
U.S. Obligations and the termination of this Agreement.



          (e) Interest for Account of U.S. Swing Line Lender. The U.S. Swing Line Lender shall
be responsible for invoicing the Specified U.S. Borrower for interest on the U.S. Swing Line Loans.
Until each U.S. Appropriate Lender funds its Base Rate Loan or risk participation pursuant to this
Section 2.04(A) to refinance such Revolving Credit Lender’s Applicable Percentage of any
U.S. Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the
account of the U.S. Swing Line Lender.



          (f) Payments Directly to U.S. Swing Line Lender. The Specified U.S. Borrower shall
make all payments of principal and interest in respect of the U.S. Swing Line Loans directly to the
U.S. Swing Line Lender.



          (B) (a) The Canadian Swing Line. Subject to the terms and conditions set forth
herein, the Canadian Swing Line Lender agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.04(B), to make loans (each such loan, a “Canadian Swing
Line Loan”) in Dollars and Canadian Dollars to the Canadian Borrower from time to time on any
Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Canadian Swing Line Sublimit, notwithstanding the fact that such
Canadian Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount
of Canadian Revolving Credit Loans and Canadian L/C Obligations of the Lender acting as Canadian
Swing Line Lender, may exceed the amount of such Lender’s Canadian Revolving Credit Commitment;
provided, however, that after giving effect to any Canadian Swing Line Loan, (i)
the Total Revolving Credit Outstandings shall not exceed the lesser of (x) the Revolving Credit
Facility and (y) the Total Borrowing Base at such time, (ii) the aggregate Outstanding Amount of
the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such
Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian
L/C Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all Canadian Swing Line Loans shall not exceed such Canadian Revolving Credit
Lender’s Canadian Revolving Credit Commitment and (iii) the Total Canadian Revolving Credit
Outstandings shall not exceed the lesser of (x) the Canadian Revolving Credit Facility and (y) the
Canadian Borrowing Base; and provided that, at no time prior to the date of completion by
the Administrative Agent of the Required Audit shall Total Canadian Outstandings exceed zero; and
provided further that, no Credit Extensions under the Canadian Revolving Credit
Facility shall be permitted at any time prior to the satisfaction of the Canadian Availability
Condition; and provided further that the Canadian Borrower shall not use the
proceeds of any Canadian Swing Line Loan to refinance any outstanding Canadian Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions hereof, the Canadian
Borrower may borrow under this Section 2.04(B), prepay under Section 2.05, and
reborrow under this Section 2.04(B). Each Canadian Swing Line Loan denominated in Dollars
shall bear interest only at a rate based on the Canadian Base Rate. Each Canadian Swing Line Loan
denominated in Canadian Dollars shall bear interest only at a rate based on the Canadian Prime
Rate. Immediately upon the making of a Canadian Swing Line Loan, each Canadian Appropriate Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
Canadian Swing Line Lender a risk participation in such Canadian Swing Line Loan in an amount equal
to the product of such Canadian Revolving Credit Lender’s Applicable Percentage times the
amount of such Canadian Swing Line Loan.



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          (b) Borrowing Procedures. Each Canadian Swing Line Borrowing shall be made upon the
Canadian Borrower’s irrevocable notice to the Canadian Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Canadian Swing
Line Lender and the Administrative Agent not later than 12:00 p.m. on the requested borrowing date,
and shall specify (i) the amount and currency to be borrowed and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery
to the Canadian Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Canadian Borrower. Promptly
after receipt by the Canadian Swing Line Lender of any telephonic Swing Line Loan Notice, the
Canadian Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the
Canadian Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Canadian Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Canadian Revolving Credit
Lender) prior to 2:00 p.m. on the date of the proposed Canadian Swing Line Borrowing (A) directing
the Canadian Swing Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.04(B)(a), or (B) that one or
more of the applicable conditions specified in Article IV is not then satisfied, then,
subject to the terms and conditions hereof, the Canadian Swing Line Lender will, not later than
3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan available to the Canadian Borrower.



          (c) Refinancing of Canadian Swing Line Loans. (i) The Canadian Swing Line Lender at
any time in its sole and absolute discretion (but at least once per week) may request, on behalf of
the Canadian Borrower (which hereby irrevocably authorizes the Canadian Swing Line Lender to so
request on its behalf), that each Canadian Appropriate Lender make a Canadian Base Rate Loan or
Canadian Prime Rate Loan, as applicable, in an amount equal to such Lender’s Applicable Percentage
of the amount of Canadian Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Canadian Base Rate Loans and Canadian Prime
Rate Loans, but subject to the unutilized portion of the Canadian Revolving Credit Facility and the
conditions set forth in Section 4.02. The Canadian Swing Line Lender shall furnish the
Canadian Borrower with a copy of the applicable Committed Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Canadian Appropriate Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available
to the Administrative Agent in immediately available funds for the account of the Canadian Swing
Line Lender at the Administrative Agent’s Office not later than 3:00 p.m. on the day specified in
such Committed Loan Notice, whereupon, subject to Section 2.04(B)(c)(ii), each Canadian
Appropriate Lender that so makes funds available shall be deemed to have made a Base Rate Loan or
Canadian Prime Rate Loan, as the case may be, to the Canadian Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Canadian Swing Line Lender.




     (ii) If for any reason any Canadian Swing Line Loan cannot be refinanced by such a
Canadian Revolving Credit Borrowing in accordance with Section 2.04(B)(c)(i), the
request for Canadian Base Rate Loans or Canadian Prime Rate Loans submitted by the Canadian
Swing Line Lender as set forth herein shall be deemed to be a request by the Canadian Swing
Line Lender that each of the Canadian Revolving Credit Lenders fund its risk participation
in the relevant Canadian Swing Line Loan and each Canadian Revolving Credit Lender’s payment
to the Administrative Agent for the account of the Canadian Swing Line Lender pursuant to
Section 2.04(B)(c)(i) shall be deemed payment in respect of such participation.



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     (iii) If any Canadian Appropriate Lender fails to make available to the Administrative
Agent for the account of the Canadian Swing Line Lender any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.04(B)(c) by the
time specified in Section 2.04(B)(c)(i), the Canadian Swing Line Lender shall be
entitled to recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Canadian Swing Line Lender at
a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar
fees customarily charged by the Canadian Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Revolving Credit Loan included in the relevant Borrowing or
funded participation in the relevant Swing Line Loan, as the case may be. A certificate of
the Canadian Swing Line Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




     (iv) Each Canadian Revolving Credit Lender’s obligation to make Canadian Revolving
Credit Loans or to purchase and fund risk participations in Canadian Swing Line Loans
pursuant to this Section 2.04(B)(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Canadian Swing Line Lender,
any Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Canadian
Revolving Credit Lender’s obligation to make Canadian Revolving Credit Loans pursuant to
this Section 2.04(B)(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or otherwise impair the
obligation of any Borrower to repay Swing Line Loans, together with interest as provided
herein.



          (d) Repayment of Participations. (i) At any time after any Canadian Appropriate
Lender has purchased and funded a risk participation in a Canadian Swing Line Loan, if the Canadian
Swing Line Lender receives any payment on account of such Swing Line Loan, the Canadian Swing Line
Lender will distribute to such Appropriate Lender its Applicable Percentage thereof in the same
funds as those received by the Canadian Swing Line Lender.




     (ii) If any payment received by the Canadian Swing Line Lender in respect of principal
or interest on any Canadian Swing Line Loan is required to be returned by the Canadian Swing
Line Lender under any of the circumstances described in Section 11.05 (including
pursuant to any settlement entered into by the Canadian Swing Line Lender in its
discretion), each Canadian Appropriate Lender shall pay to the Canadian Swing Line Lender
its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the Canadian Prime Rate. The Administrative Agent will make such demand
upon the request of the Canadian Swing Line Lender. The obligations of the Lenders under
this clause shall survive the payment in full of the Canadian Obligations and the
termination of this Agreement.



          (e) Interest for Account of Canadian Swing Line Lender. The Canadian Swing Line
Lender shall be responsible for invoicing the Canadian Borrower for interest on the Canadian Swing
Line Loans. Until each Canadian Appropriate Lender funds its Canadian Base Rate Loan or Canadian
Prime Rate Loan, as the case may be, or risk participation pursuant to this Section 2.04(B)
to refinance such Revolving Credit Lender’s Applicable Percentage of any Canadian Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the account of the Canadian
Swing Line Lender.



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          (f) Payments Directly to Canadian Swing Line Lender. The Canadian Borrower shall make
all payments of principal and interest in respect of the Canadian Swing Line Loans directly to the
Canadian Swing Line Lender.



          2.05 Prepayments. (a) Optional. (i) Subject to the last sentence of this
Section 2.05(a)(i), the Borrowers may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium
or penalty; provided that (A) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans or BA Rate Loans and (2) one Business Day prior to any date of prepayment of Base Rate Loans,
Canadian Base Rate Loans and Canadian Prime Rate Loans; (B) any prepayment of Eurodollar Rate Loans
or BA Rate Loans shall be in a principal amount of $5,000,000 or Cdn. $5,000,000, as applicable, or
a whole multiple of $1,000,000 or Cdn. $1,000,000, as applicable, in excess thereof; and (C) any
prepayment of Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate Loans shall be in a
principal amount of $500,000 or Cdn. $500,000, as applicable, or a whole multiple of $100,000 or
Cdn. $100,000, as applicable, in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans or BA Rate Loans
are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Appropriate Lender of its receipt of each such notice, and of the amount of such
Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in
respect of the relevant Facility). If such notice is given by a Borrower, such Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein. Any prepayment of a Eurodollar Rate Loan or a BA Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05.




     (ii) The applicable Borrower may, upon notice to the applicable Swing Line Lender (with
a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that (A)
such notice must be received by the applicable Swing Line Lender and the Administrative
Agent not later than 12:00 p.m. on the date of the prepayment. Each such notice shall
specify the date and amount of such prepayment. If such notice is given by a Borrower, such
Borrower shall make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein.



          (b) Mandatory. (i) If the Specified U.S. Borrower or any of its Domestic
Subsidiaries Disposes of any property comprising U.S. ABL Priority Collateral pursuant to
Section 7.05(e) or (l) which results in the realization by such Person of Net Cash
Proceeds, the Borrowers shall prepay an aggregate principal amount of Revolving Credit Loans and
Cash Collateralize L/C Obligations equal to the lesser of (x) 100% of such Net Cash Proceeds and
(y) Total Outstandings, within one (1) Business Day of receipt thereof by such Person (such
prepayments to be applied as set forth in clause (vii) below.




     (ii) If the Specified U.S. Borrower or any of its Subsidiaries Disposes of any property
pursuant to Section 7.05(e) or (l) comprising Canadian ABL Priority Collateral which
results in the realization by such Person of Net Cash Proceeds, the Canadian Borrower shall
prepay an aggregate principal amount of Canadian Revolving Credit Loans and Cash
Collateralize Canadian L/C Obligations equal to the lesser of (x) 100% of such Net Cash
Proceeds and (y) Total Canadian Outstandings, within one (1) Business Day of receipt thereof
by such Person (such prepayments to be applied as set forth in clause (vii) below).



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     (iii) Upon any Extraordinary Receipt received by or paid to or for the account of the
Specified U.S. Borrower or any of its Domestic Subsidiaries in respect of U.S. ABL Priority
Collateral, and not otherwise included in clause (i) of this Section 2.05(b), the
Borrowers shall prepay an aggregate principal amount of Revolving Credit Loans and Cash
Collateralize L/C Obligations equal to the lesser of (x) 100% of such Net Cash Proceeds and
(y) Total Outstandings, within one (1) Business Day of receipt thereof by the Specified U.S.
Borrower or such Subsidiary (such prepayments to be applied as set forth in clause
(vii) below).




     (iv) Upon any Extraordinary Receipt received by or paid to or for the account of the
Specified U.S. Borrower or any of its Subsidiaries in respect of Canadian ABL Priority
Collateral, and not otherwise included in clause (ii) of this Section 2.05(b), the
Canadian Borrower shall prepay an aggregate principal amount of Canadian Revolving Credit
Loans and Cash Collateralize Canadian L/C Obligations equal to the lesser of (x) 100% of
such Net Cash Proceeds and (y) Total Canadian Outstandings, within one (1) Business Day of
receipt thereof by the Specified U.S. Borrower or such Subsidiary (such prepayments to be
applied as set forth in clause (vii) below).




     (v) If for any reason the Total Revolving Credit Outstandings at any time exceed the
lesser of (x) the Borrowing Base at such time (except as a result of Overadvance Loans or
Protective Advances permitted under Sections 2.01(e), (f) and (g))
and (y) the Revolving Credit Facility at such time, the Borrowers shall immediately prepay
their respective Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash
Collateralize their respective L/C Obligations (other than the L/C Borrowings) in an
aggregate amount equal to such excess. If for any reason the Total U.S. Revolving Credit
Outstandings at any time exceed the lesser of (x) the U.S. Borrowing Base at such time
(except to the extent constituting U.S. Overadvance Loans permitted under Section
2.01(e)) and (y) the U.S. Revolving Credit Facility at such time, the U.S. Borrowers
shall immediately prepay U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C
Borrowings and/or Cash Collateralize the U.S. L/C Obligations (other than the U.S. L/C
Borrowings) in an aggregate amount equal to such excess. If for any reason the Total
Canadian Revolving Credit Outstandings at any time exceed the lesser of (x) the Canadian
Borrowing Base at such time (except to the extent constituting Canadian Overadvance Loans
permitted under Section 2.01(f)) and (y) the Canadian Revolving Credit Facility at
such time, the Canadian Borrower shall immediately prepay Canadian Revolving Credit Loans,
Canadian Swing Line Loans and Canadian L/C Borrowings and/or Cash Collateralize the Canadian
L/C Obligations (other than the Canadian L/C Borrowings) in an aggregate amount equal to
such excess.




     (vi) If, as a result of any negative fluctuations in the Dollar Equivalent of Canadian
Dollars (or other foreign currencies in which outstanding Letters of Credit may be
denominated), the Total Canadian Revolving Credit Outstandings exceeds 110% of the aggregate
amount of the Canadian Revolving Credit Commitments as then in effect, the Canadian Borrower
shall, if requested (through the Administrative Agent) by the Required Canadian Lenders
prepay the Canadian Revolving Credit Loans (or Cash Collateralize the Canadian Letters of
Credit) within three (3) Business Days following such Borrower’s receipt of such request in
such amounts as shall be necessary so that after giving effect thereto the Total Canadian
Revolving Credit Outstandings does not exceed the Canadian Revolving Credit Commitments.




     (vii) Prepayments of each Revolving Credit Facility made pursuant to this Section
2.05(b) shall be applied as follows:




     (A) with respect to prepayments resulting from any Disposition of, or the
receipt of any Extraordinary Receipts in respect of, any U.S. Collateral, such
prepayments, first,



70









 







shall be applied to pay accrued and unpaid interest in respect of the
outstanding U.S. L/C Borrowings and the outstanding U.S. Swing Line Loans (including
U.S. Overadvance Loans and U.S. Protective Advances) then being prepaid, second,
shall be applied to prepay the principal of any U.S. Overadvance Loans and U.S.
Protective Advances, if any, third, shall be applied ratably to the
outstanding U.S. Revolving Credit Loans (including Swing Line Loans), and,
fourth, shall be used to Cash Collateralize the remaining U.S. L/C
Obligations; and the amount remaining, if any, after the prepayment in full of all
U.S. L/C Borrowings, U.S. Swing Line Loans and U.S. Revolving Credit Loans
outstanding at such time and the Cash Collateralization of the remaining U.S. L/C
Obligations in full, in each case under the U.S. Revolving Credit Facility, shall be
applied to the Canadian Revolving Credit Facility, in the order set forth in
Section 2.05(b)(vii)(B); and thereafter, the amount remaining, if any, after
the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit
Loans outstanding at such time, and the Cash Collateralization of the remaining L/C
Obligations in full under each Revolving Credit Facility, may be retained by the
Borrowers for use in the ordinary course of its business; provided that,
upon the drawing of any Letter of Credit that has been Cash Collateralized, the
funds held as Cash Collateral shall be applied (without any further action by or
notice to or from any Borrower or any other Loan Party) to reimburse the applicable
L/C Issuer or the applicable Revolving Credit Lenders, as applicable; and




     (B) with respect to prepayments resulting from any Disposition of, or the
receipt of any Extraordinary Receipts in respect of, any Canadian Collateral, such
prepayments, first, shall be applied to pay accrued and unpaid interest in
respect of the outstanding Canadian L/C Borrowings and the outstanding Canadian
Swing Line Loans (including Canadian Overadvance Loans and Canadian Protective
Advances) then being prepaid, second, shall be applied to prepay the
principal of any Canadian Overadvance Loans and Canadian Protective Advances, if
any, third, shall be applied ratably to the outstanding Canadian Revolving
Credit Loans (including Swing Line Loans), and, fourth, shall be used to
Cash Collateralize the remaining Canadian L/C Obligations; and the amount remaining,
if any, after the prepayment in full of all Canadian L/C Borrowings, Canadian Swing
Line Loans and Canadian Revolving Credit Loans outstanding at such time and the Cash
Collateralization of the remaining Canadian L/C Obligations in full, in each case
under the Canadian Revolving Credit Facility, may be retained by the Canadian
Borrower for use in the ordinary course of its business; provided that, upon
the drawing of any Letter of Credit that has been Cash Collateralized, the funds
held as Cash Collateral shall be applied (without any further action by or notice to
or from any Borrower or any other Loan Party) to reimburse the applicable L/C Issuer
or the applicable Revolving Credit Lenders, as applicable.



          (c) Anything contained in Section 2.05(b) to the contrary notwithstanding, (i) if,
following the occurrence of any “Asset Sale” (as such term or any similar term is defined
in any Junior Financing Document by any Loan Party or any of its Subsidiaries, the Specified U.S.
Borrower is required to commit by a particular date (a “Commitment Date”) to apply or cause
its Subsidiaries to apply an amount equal to any of the “Net Proceeds” (as defined in the
applicable Junior Financing Document) thereof in a particular manner, or to apply by a particular
date (an “Application Date”) an amount equal to any such “Net Proceeds” in a
particular manner, in either case in order to excuse the Specified U.S. Borrower from being
required to make an “Asset Sale Offer” (as defined in the applicable Junior Financing
Document) in connection with such “Asset Sale”, and the Specified U.S. Borrower shall have
failed to so commit or to so apply an amount equal to such “Net Proceeds” at least 60 days
before the applicable Commitment Date or Application Date, as the case may be, or (ii) if the
Specified U.S. Borrower at any other time shall have failed to apply or commit or cause to be
applied an amount equal to



71









 







any such “Net Proceeds”, and, within 60 days thereafter assuming no further
application or commitment of an amount equal to such “Net Proceeds” the Specified U.S.
Borrower would otherwise be required to make an “Asset Sale Offer” in respect thereof, then
in either such case the Specified U.S. Borrower shall immediately pay or cause to be paid to the
Administrative Agent an amount equal to such “Net Proceeds” to be applied to the payment of
the Loans and L/C Borrowings and to Cash Collateralize the remaining L/C Obligations under the
Facility or Facilities to which such property relates, in the manner set forth in Section
2.05(b) in such amounts as shall excuse the Specified U.S. Borrower from making any such
“Asset Sale Offer”. This Section 2.05(c) is subject in all respects, insofar as it
relates to the Term Priority Collateral, to the Intercreditor Agreement and the rights of the
holders of the Senior Secured Notes.



          2.06 Termination or Reduction of Commitments. (a) Optional. The Specified U.S.
Borrower may, upon notice to the Administrative Agent, terminate the U.S. Revolving Credit
Facility, the U.S. Letter of Credit Sublimit, the U.S. Swing Line Sublimit, or from time to time
permanently reduce the U.S. Revolving Credit Facility, the U.S. Letter of Credit Sublimit, or the
U.S. Swing Line Sublimit; and the Canadian Borrower may, upon notice to the Administrative Agent,
terminate the Canadian Revolving Credit Facility, the Canadian Letter of Credit Sublimit or the
Canadian Swing Line Sublimit, or from time to time permanently reduce the Canadian Revolving Credit
Facility, the Canadian Letter of Credit Sublimit or the Canadian Swing Line Sublimit
provided that (i) any such notice shall be received by the Administrative Agent not later
than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof and (iii) the Borrowers shall not terminate or reduce (A) the U.S.
Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total U.S. Revolving Credit Outstandings would exceed the U.S. Revolving Credit
Facility, (B) the U.S. Letter of Credit Sublimit if, after giving effect thereto, the Outstanding
Amount of U.S. L/C Obligations not fully Cash Collateralized hereunder would exceed the U.S. Letter
of Credit Sublimit, (C) the U.S. Swing Line Sublimit if, after giving effect thereto and to any
concurrent prepayments hereunder, the Outstanding Amount of U.S. Swing Line Loans would exceed the
U.S. Swing Line Sublimit, (D) the Canadian Revolving Credit Facility if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Canadian Revolving Credit
Outstandings would exceed the Canadian Revolving Credit Facility, (E) the Canadian Letter of Credit
Sublimit if, after giving effect thereto, the Outstanding Amount of Canadian L/C Obligations not
fully Cash Collateralized hereunder would exceed the Canadian Letter of Credit Sublimit, (E) the
Canadian Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments
hereunder, the Outstanding Amount of Canadian Swing Line Loans would exceed the Canadian Swing Line
Sublimit or (F) the U.S. Revolving Credit Facility while the Canadian Revolving Credit Facility
remains in effect.



          (b) Mandatory. (i) If after giving effect to any reduction or termination of U.S.
Revolving Credit Commitments under this Section 2.06, the U.S. Letter of Credit Sublimit or
the U.S. Swing Line Sublimit exceeds the U.S. Revolving Credit Facility at such time, the U.S.
Letter of Credit Sublimit and/or the U.S. Swing Line Sublimit, as the case may be, shall be
automatically reduced by the amount of such excess.




     (ii) If after giving effect to any reduction or termination of Canadian Revolving
Credit Commitments under this Section 2.06, the Canadian Letter of Credit Sublimit
or the Canadian Swing Line Sublimit exceeds the Canadian Revolving Credit Facility at such
time, the Canadian Letter of Credit Sublimit and/or the Canadian Swing Line Sublimit, as the
case may be, shall be automatically reduced by the amount of such excess.



          (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Appropriate Lenders of any termination or reduction of any Letter of
Credit Sublimit, any Swing Line Sublimit or any Revolving Credit Commitment under this Section
2.06.



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Upon any reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of
each Appropriate Lender shall be reduced by such Lender’s Applicable Percentage of such reduction
amount. All fees in respect of the applicable Revolving Credit Facility accrued until the
effective date of any termination of such Revolving Credit Facility shall be paid on the effective
date of such termination.



          2.07 Repayment of Loans. (a) Revolving Credit Loans. The U.S. Borrowers shall
repay to the U.S. Revolving Credit Lenders on the Maturity Date for the U.S. Revolving Credit
Facility the aggregate principal amount of all U.S. Revolving Credit Loans outstanding on such
date. The Canadian Borrower shall repay to the Canadian Revolving Credit Lenders on the Maturity
Date for the Canadian Revolving Credit Facility the aggregate principal amount of all Canadian
Revolving Credit Loans outstanding on such date.



          (b) Swing Line Loans. The U.S. Borrowers shall repay each U.S. Swing Line Loan on the
earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date for the U.S. Revolving Credit Facility. The Canadian Borrower shall repay each Canadian Swing
Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and
(ii) the Maturity Date for the Canadian Revolving Credit Facility.



          2.08 Interest. (a) Subject to the provisions of Section 2.08(b), (i) each
Eurodollar Rate Loan under a Facility shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest
Period plus the Applicable Rate; (ii) each BA Rate Loan under the Canadian Revolving Credit
Facility shall bear interest on the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the BA Rate for such Interest Period plus the Applicable Rate; (iii)
each Base Rate Loan under a Facility shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; (iv) each Canadian Base Rate Loan under the Canadian Revolving Credit Facility
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Canadian Base Rate plus the Applicable Rate; (v) each Canadian
Prime Rate Loan under the Canadian Revolving Credit Facility shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the
Canadian Prime Rate plus the Applicable Rate; (vi) each U.S. Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate for the Revolving Credit Facility; and (vii) each
Canadian Swing Line Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Canadian Base Rate (for Canadian Swing
Line Loans denominated in Dollars) or the Canadian Prime Rate (for Canadian Swing Line Loans
denominated in Canadian Dollars) plus the Applicable Rate for the Revolving Credit Facility.



          (b) (i) Upon the occurrence and during the continuation of any Default or Event of Default,
if any amount of principal of any Loan is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




     (ii) Upon the occurrence and during the continuation of any Default or Event of
Default, if any amount (other than principal of any Loan) payable by a Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.



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     (iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



          (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



          2.09 Fees. In addition to certain fees described in Sections 2.03(h) and
(i):



          (a) Commitment Fee. The U.S. Borrowers shall pay to the Administrative Agent for the
account of each U.S. Appropriate Lender in accordance with its Applicable Percentage, a commitment
fee equal to the Applicable Commitment Fee Rate divided by three hundred and sixty-five
(365) days and multiplied by the number of days in the fiscal quarter and then
multiplied by the amount, if any, by which the Average Revolving Credit Facility Balance
with respect to the U.S. Revolving Credit Facility for such fiscal quarter (or portion thereof that
the U.S. Revolving Credit Commitments are in effect) is less than the aggregate amount of the U.S.
Revolving Credit Commitments; provided that, if the U.S. Revolving Credit Commitments are
terminated on a day other than the first day of a fiscal quarter, then any such fee payable for the
fiscal quarter in which termination shall occur shall be paid on the effective date of such
termination and shall be based upon the number of days that have elapsed during such period. The
Canadian Borrower shall pay to the Administrative Agent for the account of each Canadian
Appropriate Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Commitment Fee Rate divided by three hundred and sixty-five (365) days and
multiplied by the number of days in the fiscal quarter and then multiplied by the
amount, if any, by which the Average Revolving Credit Facility Balance with respect to the Canadian
Revolving Credit Facility for such fiscal quarter (or portion thereof that the Canadian Revolving
Credit Commitments are in effect) is less than the aggregate amount of the Canadian Revolving
Credit Commitments; provided that, if the Canadian Revolving Credit Commitments are
terminated on a day other than the first day of a fiscal quarter, then any such fee payable for the
fiscal quarter in which termination shall occur shall be paid on the effective date of such
termination and shall be based upon the number of days that have elapsed during such period. The
commitment fees shall be due and payable quarterly in arrears on the first Business Day of each
April, July, October and January, commencing with the first such date to occur after the Closing
Date, on the last day of the Availability Period for the Revolving Credit Facility (and, if
applicable, thereafter on demand). The commitment fee shall be calculated quarterly in arrears and
if there is any change in the Applicable Commitment Fee Rate during any quarter, the daily amount
shall be computed and multiplied by the Applicable Commitment Fee Rate for each period during which
such Applicable Commitment Fee Rate was in effect, with effect from the date of the change in such
rate pursuant to the definition of Applicable Commitment Fee Rate. The commitment fee shall accrue
at all times, including at any time during which one or more of the conditions in Article
IV is not met.



          (b) Other Fees. (i) The Borrowers shall pay to the Bookrunners and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.




     (ii) The Borrowers shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



          2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of fees, interest for Base Rate Loans, Canadian Base Rate Loans and Canadian



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Prime Rate Loans when the Base Rate, Canadian Base Rate and/or Canadian Prime Rate is
determined by Bank of America’s or Bank or America-Canada Branch’s, as applicable, “prime rate” or
“base rate”, and BA Rate Loans shall be made on the basis of a year of 365 days and actual days
elapsed. All other computations of interest shall be made on the basis of a 360-day year and
actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one day. Each determination by
the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error. For the purposes of the Interest Act (Canada), (i) whenever
any interest or fees under this Agreement or any other Loan Document is calculated using a rate
based on a year of 360 days, the rate determined pursuant to such calculation, when expressed as an
annual rate, is equivalent to (x) the applicable rate, (y) multiplied by the actual number of days
in the calendar year in which the period for which such interest is payable (or compounded) ends,
and (z) divided by 360, (ii) the principle of deemed reinvestment of interest does not apply to any
interest calculation under this Agreement, and (iii) the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.



          (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Specified U.S. Borrower or for any other reason, the Borrowers or the Lenders determine that
(i) Average Availability as calculated by a Borrower as of any applicable date was inaccurate and
(ii) a proper calculation of the Average Availability would have resulted in higher pricing for
such period, the applicable Borrowers shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders or L/C Issuers, as the case may
be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed
entry of an order for relief with respect to any such Borrower under any Debtor Relief Laws,
automatically and without further action by the Administrative Agent, any Lender or any L/C
Issuer), an amount equal to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as
the case may be, under Section 2.03(b)(iii), 2.03(h) or 2.08(b) or under
Article VIII. The Borrowers’ obligations under this paragraph shall survive the
termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.



          2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise affect the obligation
of any Borrower hereunder to pay any amount owing with respect to any Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the applicable Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect
thereto.



          (b) In addition to the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and



75









 







Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



          2.12 Payments Generally; Administrative Agent’s Clawback. (a) General. All payments
to be made by the Borrowers shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the
Borrowers hereunder shall be made to the Administrative Agent, for the account of the Appropriate
Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars or Canadian
Dollars, as the case may be, and in immediately available funds not later than 2:00 p.m. on the
date specified herein. The Administrative Agent will promptly distribute to each Appropriate
Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by a Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be
reflected on computing interest or fees, as the case may be.



          (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans or BA Rate Loans (or, in the case of any Borrowing of Base Rate
Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, prior to 12:00 noon on the date of
such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of
Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the applicable Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to
pay to the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A)
in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by a Borrower, the interest rate applicable
to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable. If such
Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of
such interest paid by such Borrower for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Borrowing. Any payment by a Borrower shall be without prejudice to
any claim such Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuers hereunder that such Borrower will not make such payment, the Administrative Agent
may assume that such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Appropriate Lenders or the
applicable L/C Issuer,



76









 







as the case may be, the amount due. In such event, if such Borrower has not in fact
made such payment, then each of the Appropriate Lenders or the applicable L/C Issuer, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or such L/C Issuer, in immediately available funds with
interest thereon, for each day from and including the date such amount is distributed to it
to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.



          A notice of the Administrative Agent to any Lender or a Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



          (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the applicable
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



          (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to
make payments pursuant to Section 11.04(c) are several and not joint. The failure of any
Lender to make any Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Loan, to purchase its participation or to make its payment under Section
11.04(c).



          (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



          (f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then outstanding hereunder and the relevant Borrower has not specified the
application of such funds, such funds shall be applied (in each case with respect to the applicable
Facility or Facilities) (i) first, toward payment of interest and fees then outstanding
hereunder (other than in respect of Bank Product Debt), ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties, (ii) second,
toward payment of the principal amount of any Overadvance Loans, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties and (iii)
third, toward payment of principal, L/C Borrowings and other Obligations (other than in
respect of Bank Product Debt) then outstanding hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal, L/C Borrowings and other Obligations then
owing to such parties; provided, however, that the proceeds from the foreclosure of
any Collateral shall be applied as set forth in the Intercreditor Agreement; provided,
further, that this Section 2.12(f) is subject in all respects to Section
8.03.



          2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any
the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the
Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders



77









 







hereunder and under the other Loan Documents at such time obtained by all the Lenders at such
time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such
Lender hereunder and under the other Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing (but not due and payable)
to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan
Parties at such time) of payment on account of the Obligations in respect of the Facilities owing
(but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time
obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans of the
other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due
and payable) to the Lenders, as the case may be; provided that prior to the CAM Exchange
Date, each Lender shall only purchase participations in Loans, L/C Obligations and Swing Line Loans
under the Facility with respect to which they hold a Commitment; and provided
further that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by a Borrower pursuant to and in accordance with the express terms of this Agreement or
(B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to a Borrower or any Subsidiary thereof (as
to which the provisions of this Section shall apply).



          Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



          2.14 Nature of Obligations. (a) The U.S. Borrowers agree that all U.S. Obligations of
each U.S. Borrower under or in respect of this Agreement or any other Loan Document shall be joint
and several obligations of all the U.S. Borrowers.




     (b) Each U.S. Borrower waives presentment to, demand of payment from and protest to the
other U.S. Borrowers of any of the U.S. Obligations, and also waives notice of acceptance of
its Obligations and notice of protest for nonpayment. The Obligations of a U.S. Borrower
hereunder shall not be affected by (i) the failure of any Lender or the Administrative Agent
to assert any claim or demand or to enforce any right or remedy against the other U.S.
Borrowers under the provisions of this Agreement or any of the other Loan Documents or
otherwise; (ii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Agreement, any of the other Loan Documents or any other agreement; or
(iii) the failure of any Lender to exercise any right or remedy against any other U.S.
Borrower.




     (c) Each U.S. Borrower further agrees that its agreement hereunder constitutes a
promise of payment when due and not of collection, and waives any right to require that any



78









 







resort be had by any Lender to any balance of any deposit account or credit on the
books of any Lender in favor of any other U.S. Borrower or any other Person.




     (d) The Obligations of each U.S. Borrower hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including, without
limitation, compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations of the other U.S. Borrowers or otherwise. Without
limiting the generality of the foregoing, the Obligations of each U.S. Borrower hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy
under this Agreement or under any other Loan Document or any other agreement, by any waiver
or modification in respect of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations of the other U.S. Borrowers, or by any
other act or omission which may or might in any manner or to any extent vary the risk of
such Borrower or otherwise operate as a discharge of such Borrower as a matter of law or
equity.




     (e) Each U.S. Borrower further agrees that its Obligations hereunder shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or any part
thereof, of principal of or interest on any Obligation of the other U.S. Borrowers is
rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the
occurrence of any event described in Sections 8.01(f) or (g) in respect of
such Borrower, any of the other U.S. Borrowers or otherwise.




     (f) In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent or any Lender may have at law or in equity against any U.S. Borrower by
virtue hereof, upon the failure of a U.S. Borrower to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each other U.S. Borrower hereby promises to and will, upon receipt of written
demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the amount
of such unpaid U.S. Obligations, and thereupon each U.S. Appropriate Lender shall, in a
reasonable manner, assign the amount of the U.S. Obligations of the other U.S. Borrowers
owed to it and paid by such Borrower pursuant to this guarantee to such Borrower, such
assignment to be pro tanto to the extent to which the Obligations in question were
discharged by such Borrower, or make such disposition thereof as such Borrower shall direct
(all without recourse to any Lender and without any representation or warranty by any
Lender).




     (g) Upon payment by a U.S. Borrower of any amount as provided above, all rights of such
Borrower against another U.S. Borrower, as the case may be, arising as a result thereof by
way of right of subrogation or otherwise shall in all respects be subordinated and junior in
right of payment to the prior indefeasible payment in full of all the U.S. Obligations to
the U.S. Revolving Credit Lenders.




     (h) Each U.S. Borrower, the Administrative Agent and each other Secured Party, hereby
confirms that it is the intention of all such Persons that the agreement and the Obligations
of each U.S. Borrower hereunder not constitute a fraudulent transfer or conveyance for
purposes of Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal or state law to the extent applicable to the
agreement and the Obligations of each U.S. Borrower hereunder. To effectuate the foregoing
intention, the Administrative Agent, the other Secured Parties and the U.S. Borrowers hereby
irrevocably agree that the Obligations of each U.S. Borrower hereunder shall be limited to
the maximum amount as



79









 







will result in the Obligations of such U.S. Borrower hereunder not constituting a
fraudulent transfer or conveyance. Each U.S. Borrower hereby unconditionally and
irrevocably agrees that in the event any payment shall be required to be made to any Secured
Party, such U.S. Borrower will contribute, to the maximum extent permitted by law, such
amounts to each other U.S. Borrower so as to maximize the aggregate amount paid to the
Secured Parties under or in respect of the Loan Documents.



          2.15 Borrower Agent. Each Borrower hereby irrevocably appoints the Specified U.S.
Borrower, and the Specified U.S. Borrower agrees to act under this Agreement, as the agent and
representative of itself and each other Borrower for all purposes under this Agreement, including
requesting Borrowings, selecting whether any Loan or portion thereof is to bear interest as a Base
Rate Loan, a Canadian Base Rate Loan, a Canadian Prime Rate Loan or a BA Rate Loan, and receiving
account statements and other notices and communications to Borrowers (or any of them) from the
Administrative Agent. The Administrative Agent may rely, and shall be fully protected in relying,
on any Committed Loan Notice, disbursement instructions, reports, information, Borrowing Base
Certificate or any other notice or communication made or given by the Borrower Agent, whether in
its own name, on behalf of any Borrower or on behalf of “the Borrowers,” and the Administrative
Agent shall have no obligation to make any inquiry or request any confirmation from or on behalf of
any other Borrower as to the binding effect on such Borrower of any such Committed Loan Notice,
instruction, report, information, Borrowing Base Certificate or other notice or communication from
the Borrower Agent, nor shall any joint and several character of the Borrowers’ liability for the
Obligations be affected.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




          3.01 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account
of Taxes. (i) Any and all payments by or on account of any obligation of any Borrower hereunder
or under any other Loan Document shall to the extent permitted by applicable Laws be made free and
clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require
any Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by such Borrower or the Administrative
Agent, as the case may be, upon the basis of the information and documentation to be delivered
pursuant to subsection (e) below.




     (ii) If any Borrower or the Administrative Agent shall be required by the Code or
other applicable Law to withhold or deduct any Taxes, including both United States Federal
backup withholding and withholding taxes, from any payment, then (A) such Borrower or the
Administrative Agent shall withhold or make such deductions as are determined by such
Borrower or the Administrative Agent to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) such Borrower or the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code or other applicable Law, and (C) to the
extent that the withholding or deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by such Borrower shall be increased as necessary so that after any
required withholding or the making of all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender
or L/C Issuer, as the case may be, receives an amount equal to the sum it would have
received had no such withholding or deduction been made




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          (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c) Tax Indemnifications. (i) Without limiting the provisions of subsection
(a) or (b) above, each Borrower shall, and do hereby, jointly and severally, indemnify
the Administrative Agent, each Lender and each L/C Issuer, and shall make payment in respect
thereof within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) withheld or deducted by any Borrower or the Administrative
Agent or paid by the Administrative Agent, such Lender or such L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Each Borrower shall also, and do hereby, jointly and severally,
indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, for any amount which a Lender or an L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to the applicable Borrower
by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent
manifest error.





     (ii) Without limiting the provisions of subsection (a) or (b) above,
each Lender and each L/C Issuer shall, and does hereby, indemnify each Borrower and the
Administrative Agent, and shall make payment in respect thereof within 10 Business Days
after demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for the Borrowers or the Administrative Agent) incurred by or asserted
against a Borrower or the Administrative Agent by any Governmental Authority as a result of
the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result
of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered
by such Lender or such L/C Issuer, as the case may be, to such Borrower or the
Administrative Agent pursuant to subsection (e). Each Lender and each L/C Issuer
hereby authorizes the Administrative Agent to set off and apply any and all amounts at any
time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or
any other Loan Document against any amount due to the Administrative Agent or any Borrower,
as the case may be, under this clause (ii). The agreements in this clause
(ii) shall survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination
of the Aggregate Commitments and the repayment, satisfaction or discharge of all other
Obligations.



          (d) Evidence of Payments. Upon request by a Borrower or the Administrative Agent, as
the case may be, after any payment of Taxes by such Borrower or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, such Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may
be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of
such payment reasonably satisfactory to such Borrower or the Administrative Agent.



          (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
applicable Borrower and to the Administrative Agent, at the time or times prescribed by applicable
Laws or when reasonably requested by such Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable Laws or by the taxing authorities of
any jurisdiction



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and such other reasonably requested information as will permit such Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by such
Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding
tax purposes in the applicable jurisdiction.




     (ii) Without limiting the generality of the foregoing, if a Borrower is resident for
tax purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to such Borrower and the Administrative Agent duly
executed, properly completed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably requested by such
Borrower or the Administrative Agent as will enable such Borrower or the Administrative
Agent, as the case may be, to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; and




     (B) each Foreign Lender (except in connection with a CAM Exchange (in which case such
Foreign Lender shall comply with Section 3.01(e)(ii)(B) to the extent practicable))
that is entitled under the Code or any applicable treaty to an exemption from or reduction
of withholding tax with respect to payments hereunder or under any other Loan Document shall
deliver to such Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender (other than as a result of a CAM Exchange) under this Agreement (and from time to
time thereafter upon the request of such Borrower or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (I) duly executed, properly completed originals of Internal Revenue Service
Form W-8BEN or any successor thereto claiming eligibility for benefits of an income
tax treaty to which the United States is a party,




     (II) duly executed, properly completed originals of Internal Revenue Service
Form W-8ECI or any successor thereto,




     (III) duly executed, properly completed originals of Internal Revenue Service
Form W-8IMY or any successor thereto and all required supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of such Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) duly executed,
properly completed originals of Internal Revenue Service Form W-8BEN, or




     (V) duly executed, properly completed originals of any other form prescribed by
applicable Laws as a basis for claiming exemption from or a reduction in United
States Federal withholding tax together with such supplementary documentation as may
be prescribed by applicable Laws to permit such Borrower or the Administrative Agent
to determine the withholding or deduction required to be made.



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     (iii) Each Lender (except an assignee Lender pursuant to a CAM Exchange under
Section 8.04 (in which case any such Lender shall comply with this Section
3.01(e)(iii) to the extent practicable)) shall promptly (A) notify the applicable
Borrower and the Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (B) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any jurisdiction that such Borrower or the Administrative
Agent make any withholding or deduction for taxes from amounts payable to such Lender.



          (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or any L/C Issuer determines, in its
reasonable discretion, that it has received a refund (or credit against other taxes payable) of any
Taxes or Other Taxes as to which it has been indemnified by a Borrower with respect to which a
Borrower has paid additional amounts pursuant to this Section, it shall pay to such Borrower an
amount equal to such refund (or credit against other taxes payable) (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent, such Lender or such L/C Issuer, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund), provided that such Borrower, upon the request of the Administrative Agent, such
Lender or such L/C Issuer, agrees to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or such L/C Issuer if the Administrative Agent, such Lender or
such L/C Issuer is required to repay such refund to such Governmental Authority. This subsection
shall not be construed to require the Administrative Agent, any Lender or any L/C Issuer to make
available its tax returns (or any other information relating to its taxes that it deems
confidential) to any Borrower or any other Person.




          3.02 Illegality. If any Lender determines in good faith that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans or BA Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate or BA Rate, or any
Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the applicable Borrowers through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or BA Rate Loans or to convert Base Rate
Loans or Canadian Base Rate Loans to Eurodollar Rate Loans or Canadian Prime Rate Loans to BA Rate
Loans shall be suspended until such Lender notifies the Administrative Agent and the applicable
Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the applicable Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans or BA Rate Loans
of such Lender to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as
applicable, either on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans or BA Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans or BA Rate Loans.
Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on
the amount so prepaid or converted.




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          3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a BA Rate Loan or a conversion
to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate or the BA
Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or BA Rate
Loan, (c) the Reuters Screen CDOR Page is not available for the timely determination of the BA
Rate, and the BA Rate cannot otherwise be determined in a timely manner in accordance with the
definition of “BA Rate”, or (d) the Eurodollar Rate or BA Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan or BA Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the applicable Borrowers and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans or BA Rate Loans shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such
notice, the applicable Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or BA Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Committed Borrowing of Base Rate Loans, Canadian Base
Rate Loans or Canadian Prime Rate Loans, as applicable, in the amount specified therein.




          3.04 Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or any L/C Issuer;




     (ii) subject any Lender or any L/C Issuer to any Tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan or BA Rate Loan made by it, or change the basis of taxation of
payments to such Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section 3.01 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or such L/C Issuer); or




     (iii) impose on any Lender or any L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans or BA Rate
Loans made by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan or BA Rate Loan (or of maintaining its obligation to make any
such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing
or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or
such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request
of such Lender or such L/C Issuer, the applicable Borrower will pay to such Lender or such L/C
Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.




          (b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would
have



84









 







the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on
the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below
that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C
Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the applicable Borrower will pay to such
Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such
reduction suffered.



          (c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the applicable Borrower shall be conclusive absent manifest error. Each applicable
Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.



          (d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided
that a Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or such L/C Issuer, as the case may be,
notifies such Borrower of the Change in Law giving rise to such increased costs or reductions and
of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof);
provided further that, a Borrower shall not be required to compensate a Lender or
an L/C Issuer for increased costs or reductions suffered more than nine months after such Change in
Law, except that in the case of any such change having retroactive effect, such period shall be
extended until nine months after the Lender becomes aware of such change.



          (e) Reserves on Eurodollar Rate Loans. Each applicable Borrower shall pay to each
Appropriate Lender, as long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as
“Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar
Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided a Borrower
shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of
such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.



          3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the applicable Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result
of:




     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan, Canadian Base Rate Loan or Canadian Prime Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason
of acceleration, or otherwise);



85









 






     (b) any failure by such Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan,
Canadian Base Rate Loan or Canadian Prime Rate Loan on the date or in the amount notified by
the applicable Borrower;




     (c) any assignment of a Eurodollar Rate Loan or BA Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by such Borrower pursuant
to Section 11.13; or




     (d) the occurrence of a CAM Exchange pursuant to Section 8.04;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by each Borrower to the Appropriate Lenders under this
Section 3.05, each Appropriate Lender shall be deemed to have funded each Eurodollar Rate
Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurodollar Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different
Lending Office. If any Lender requests compensation under Section 3.04, or a Borrower is
required to pay any additional amount to any Lender, any L/C Issuer or any Governmental Authority
for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender
gives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer, as
applicable, shall use reasonable efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or Affiliates, if, in the judgment of such Lender or such L/C Issuer, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section
3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Appropriate Lender in
connection with any such designation or assignment.



          (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if a Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, such
Borrower may replace such Lender in accordance with Section 11.13.




          3.07 Survival. All of the Borrowers’ obligations under this Article III shall survive
termination of the Aggregate Commitments, repayment of all other Obligations hereunder and
resignation of the Administrative Agent.




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ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




          4.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and
each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:




     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies or in “pdf” or similar format (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated
the Closing Date (or, in the case of certificates of governmental officials, a recent date before
the Closing Date) and each in form and substance reasonably satisfactory to the Administrative
Agent and each of the Lenders:




     (i) executed counterparts of this Agreement in sufficient number for
distribution to the Administrative Agent, each Lender and each Borrower;




     (ii) a Note executed by each applicable Borrower in favor of each Lender
requesting a Note;




     (iii) the Intercreditor Agreement duly executed by the Administrative Agent,
the Trustee and the U.S. Loan Parties;




     (iv) the U.S. Guaranty duly executed by the Specified U.S. Borrower and each
U.S. Subsidiary Guarantor;




     (v) the U.S. Security Agreement duly executed by each U.S. Loan Party, together
with:




     (A) certificates representing the Pledged Equity referred to therein
accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,




     (B) proper Financing Statements in form appropriate for filing under
the UCC and/or PPSA of all jurisdictions that the Administrative Agent may
deem necessary or desirable in order to perfect the Liens created under the
Security Agreement, covering the Collateral described in the Security
Agreement,




     (C) completed requests for information, dated on or before the date of
the initial Credit Extension, listing all effective financing statements
filed in the jurisdictions referred to in clause (B) above that name any
Loan Party as debtor, together with copies of such other financing
statements,




     (D) evidence of the completion of all other actions, recordings and
filings of or with respect to the Security Agreement that the Administrative
Agent may deem necessary or desirable in order to perfect the Liens created
thereby,




     (E) evidence that all other action that the Administrative Agent may
deem necessary or desirable in order to perfect the Liens created under the
Security Agreement has been taken (including receipt of duly executed payoff



87









 







letters, UCC-3 termination statements and landlords’ and bailees’
waiver and consent agreements); and




     (F) the U.S. Perfection Certificate, along with completed Schedules
thereto, duly executed by the Specified U.S. Borrower;




provided, that, notwithstanding anything in this Section
4.01(a)(v) to the contrary, solely with respect to any non-U.S.
Collateral, if the perfection of the Administrative Agent’s security
interest in such Collateral may not be accomplished prior to the Closing
Date without undue burden or expense and without the taking of any action
that goes beyond commercial reasonableness, then the delivery of documents
and instruments for perfection of such security interests shall not
constitute a condition precedent to the availability of the Senior Credit
Facility to the U.S. Borrowers, and the Loan Parties hereby agree to deliver
or cause to be delivered such documents and instruments, and take or cause
to be taken such other actions as may be required to perfect such security
interests within the earlier of 30 days after the Closing Date and the time
at which any such non-U.S. Collateral becomes perfected in respect of the
Senior Secured Notes.




     (vi) deeds of trust, trust deeds, deeds to secure debt, and mortgages, in
substantially the form of Exhibit H (with such changes as may be
satisfactory to the Administrative Agent and its counsel to account for local law
matters) and otherwise in form and substance satisfactory to the Administrative
Agent and covering the properties listed on Schedule 4.01(a)(vi) (together
with the Assignments of Leases and Rents referred to therein and each other mortgage
delivered pursuant to Section 6.12, in each case as amended, the
“Mortgages”), duly executed by the appropriate U.S. Loan Party, together
with:




     (A) evidence that counterparts of the Mortgages have been duly
executed, acknowledged and delivered and are in form suitable for filing or
recording in all filing or recording offices that the Administrative Agent
may deem necessary or desirable in order to create a valid (junior only to
the Liens securing the Senior Secured Notes) and subsisting Lien on the
property described therein in favor of the Administrative Agent for the
benefit of the Secured Parties and that all filing, documentary, stamp,
intangible and recording taxes and fees have been paid,




     (B) fully paid American Land Title Association Lender’s Extended
Coverage title insurance policies (the “Mortgage Policies”) in form
and substance, with endorsements (including zoning endorsements) and in
amounts acceptable to the Administrative Agent in its reasonable discretion
(such amount not to exceed the value of the property in cases where tie-in
endorsements are available or, if not available, 10% of the value of such
property), issued, coinsured and reinsured by title insurers acceptable to
the Administrative Agent, insuring the Mortgages to be valid and subsisting
Liens on the property described therein, free and clear of all defects
(including, but not limited to, mechanics’ and materialmen’s Liens) and
encumbrances, excepting only Permitted Encumbrances and other Liens
permitted under the Loan Documents, and providing for such other affirmative
insurance (including endorsements for future advances under the Loan
Documents, for mechanics’ and materialmen’s Liens



88









 







and for zoning of the applicable property) and such coinsurance and
direct access reinsurance as the Administrative Agent may deem necessary or
desirable, and with respect to any property located in a state in which a
zoning endorsement is not available, a zoning compliance letter from the
applicable municipality or, if not available, a zoning report from Planning
and Zoning Resources Corporation, in each case satisfactory to the
Administrative Agent in its reasonable discretion,




     (C) American Land Title Association/American Congress on Surveying and
Mapping form surveys, for which all necessary fees (where applicable) have
been paid, and dated no more than 30 days before the day of the initial
Credit Extension, certified to the Administrative Agent and the issuer of
the Mortgage Policies in a manner satisfactory to the Administrative Agent
by a land surveyor duly registered and licensed in the States in which the
property described in such surveys is located and acceptable to the
Administrative Agent, showing all buildings and other improvements, any
off-site improvements, the location of any easements, parking spaces, rights
of way, building set-back lines and other dimensional regulations and the
absence of encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and other defects
acceptable to the Administrative Agent, provided that
notwithstanding anything in this clause (C) to the contrary, to the extent
that the Mortgage Policies for the properties listed on Schedule
4.01(a)(vi) hereto include no survey exception without the need to
comply with this clause (C), this clause (C) shall not apply with respect to
such property,




     (D) a favorable opinion of local counsel to the Loan Parties in the
states in which the Properties are located, addressed to the Administrative
Agent and each Lender, with respect to the enforceability and perfection of
the Mortgages and any related fixture filings, substantially in the form of
Exhibit J-3 (with such changes as may be satisfactory to the
Administrative Agent and its counsel to account for local law matters), and
with respect to such other matters concerning the Loan Parties and the Loan
Documents as the Required Lenders may reasonably request;




     (E) [reserved],




     (F) evidence of the insurance required by the terms of the Mortgages,




     (G) [reserved]; and




     (H) such other consents and agreements and confirmations as the
Administrative Agent may deem reasonably necessary or desirable and evidence
that all other actions that the Administrative Agent may deem necessary or
desirable in order to create valid and subsisting Liens on the property
described in the Mortgages has been taken;




provided, that, notwithstanding anything in this Section
4.01(a)(vi) to the contrary, no mortgages, title insurance policies,
surveys or other customary documentation relating to real property
Collateral (the “Real Estate Collateral Deliverables”), will be
delivered prior to or on the Closing Date and the delivery of such Real
Estate Collateral Deliverable shall not constitute a condition



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precedent to the availability of the Senior Credit Facility, and the Loan
Parties hereby agree to deliver such Real Estate Collateral Deliverable
(including related legal opinions as to matters of (i) enforceability and
perfection of the Mortgages and any related fixture filings, and (ii)
corporate formalities, as the Administrative Agent may request) within the
earlier of 120 days after the Closing Date and the time at which any such
real property Collateral secures, or Real Estate Collateral Deliverable is
delivered in respect of, the Senior Secured Notes; provided
further that in each case, the Administrative Agent may, in its sole
discretion, grant extensions of such time period.




     (vii) an intellectual property security agreement, in substantially the form of
Exhibit B to the U.S. Security Agreement (together with each other
intellectual property security agreement and intellectual property security
agreement supplement delivered pursuant to Section 6.12, in each case as
amended, the “U.S. Intellectual Property Security Agreement”), duly executed
by each U.S. Loan Party, together with evidence that all action that the
Administrative Agent may deem necessary or desirable in order to perfect the Liens
created under the U.S. Intellectual Property Security Agreement has been taken;




     (viii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan Party as
the Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party
is a party or is to be a party;




     (ix) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
that each Loan Party is validly existing, in good standing and qualified to engage
in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect;




     (x) a favorable opinion of Ropes & Gray LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set forth
in Exhibit J-1 and such other matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;




     (xi) [reserved]




     (xii) favorable opinions of local counsel to the Loan Parties in the United
States (other than in such jurisdictions as are addressed in Schedule 6.22)
addressed to the Administrative Agent and each Lender, as to such matters concerning
the Loan Parties and the Loan Documents as the Required Lenders may reasonably
request;




     (xiii) [reserved]




     (xiv) [reserved];




     (xv) a certificate signed by a Responsible Officer of each of the Specified
U.S. Borrower and the Canadian Borrower certifying (A) that the conditions specified
in



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Sections 4.02(a),(b) and (d) have been satisfied and (B) that
there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually
or in the aggregate, a Material Adverse Effect;




     (xvi) the Bookrunners and the Lenders shall have received: (A) audited
consolidated financial statements of the Specified U.S. Borrower and its
subsidiaries for the three fiscal years ended most recently prior to the Closing
Date, unaudited consolidated financial statements of the Specified U.S. Borrower and
its subsidiaries for any interim quarterly periods that have ended since the most
recent of such audited financial statements, and a pro forma balance sheet as to the
Specified U.S. Borrower and its subsidiaries giving effect to the Transaction for
the month ended March 29, 2008, which in each case, (1) shall be reasonably
satisfactory in form and substance to the Bookrunners and the Lenders and (2) shall
not be materially inconsistent with the information heretofore provided; and (B)
forecasts prepared by management of the Specified U.S. Borrower and its
subsidiaries, each in form reasonably satisfactory to the Bookrunners and the
Lenders, of balance sheets, income statements and cash flow statements for each year
commencing with the first fiscal year following the Closing Date for the term of the
Senior Credit Facility;




     (xvii) the Administrative Agent shall have received certification as to the
consolidated financial condition and solvency of each Borrower and each Guarantor,
individually and together with its subsidiaries, taken as a whole (after giving
effect to the Transaction and the incurrence of indebtedness related thereto), from
the chief financial officer of the Specified U.S. Borrower;




     (xviii) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect, together with endorsements naming
the Administrative Agent, on behalf of the Lenders, as an additional insured or loss
payee, as the case may be, under all insurance policies maintained with respect to
the assets and properties of the Loan Parties that constitutes Collateral (and the
Lenders shall be satisfied with the amount, types and terms and conditions of all
insurance maintained by the Loan Parties and their subsidiaries); and




     (xvii) such other assurances, certificates, documents, consents or opinions as
the Administrative Agent, the L/C Issuers, the Swing Line Lenders or any Lender
reasonably may require.



          (b) (i) All fees required to be paid to the Administrative Agent (including the fees and
expenses of counsel (including any local counsel) for the Administrative Agent) and the Bookrunners
on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the
Lenders on or before the Closing Date shall have been paid.



          (c) Receipt of all governmental, shareholder and third party consents and approvals necessary
in connection with the Transaction and the related financings and other transactions contemplated
hereby.



          (d) There shall not have occurred since December 31, 2007 any event or condition that has had
or could be reasonably expected, either individually or in the aggregate, to have a Material
Adverse Effect provided that neither (i) the Company’s financial results for its fiscal quarter
ending March 29, 2008, as disclosed in the March 10-Q (and the equity cure with respect thereto)
nor (ii) any event occurring prior to March 29, 2008 as and to the extent specifically described in
the March 10-Q as to which there has been



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no adverse change in status or effect on the Company from that set forth in the March 10-Q
shall be deemed to constitute a Material Adverse Effect; provided further that the March 29, 2008
financial results and such other events may be considered in determining whether a Material Adverse
Effect exists in a future period or on a cumulative basis.



          (e) The absence of any action, suit, investigation or proceeding pending or, to the knowledge
of the Borrowers, threatened in any court or before any arbitrator or governmental authority that
could reasonably be expected to have a Material Adverse Effect.



          (f) [Reserved].



          (g) The Senior Secured Notes shall have been issued on the terms and conditions set forth in
the Senior Secured Notes Offering Memorandum delivered to the Bookrunners on May 12, 2008 and to
the extent not set forth in such offering memorandum, on terms and conditions reasonably
satisfactory to the Lenders.



          (h) Excess Availability on the Closing Date (after giving effect to the Transaction) shall
not be less than $50 million if the Required Audit has not been completed or $75 million if the
Required Audit has been completed.



          (i) The Lenders shall have received all documentation and other information required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the PATRIOT Act.



          (j) All indebtedness and other amounts due or outstanding in respect of the Existing Credit
Agreement shall have been (or substantially simultaneously with the Closing Date shall be) paid in
full, all commitments (if any) in respect thereof terminated and all guarantees (if any) therefor
and security (if any) thereof discharged and released. After giving effect to the Transactions and
the other transactions contemplated hereby, the Specified U.S Borrower and its subsidiaries shall
have outstanding no indebtedness or preferred stock other than (a) the loans and other extensions
of credit under the Senior Credit Facility, (b) the Senior Secured Notes and (c) other limited
indebtedness previously identified to the Bookrunners.


Without limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or reasonably satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.




          4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:





     (a) The representations and warranties of each Borrower and each other Loan Party
contained in Article V or any other Loan Document shall be true and correct in all
material respects (or in all respects in the case of any representations and warranties
qualified by materiality) on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects (or in all respects in
the case of any representations and



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warranties qualified by materiality) as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties contained in
Sections 5.05(a) and (b) shall be deemed to refer to the most recent
statements furnished pursuant to Sections 6.01(a) and (b), respectively.




     (b) No Default shall exist, or would result from such proposed Credit Extension or
from the application of the proceeds thereof.




     (c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the
applicable Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.




     (d) (i) The lesser of (A) the Total Borrowing Base and (B) the Revolving Credit
Facility, exceeds the Outstanding Amount of the Revolving Credit Loans, Swing Line Loans and
L/C Obligations at such time, after giving effect to such Credit Extension, (ii) the lesser
of (A) the U.S. Borrowing Base and (B) the U.S. Revolving Credit Facility, exceeds the
Outstanding Amount of the U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C
Obligations at such time, after giving effect to such Credit Extension and (iii) the lesser
of (A) the Canadian Borrowing Base and (B) the Canadian Revolving Credit Facility, exceeds
the Outstanding Amount of the Canadian Revolving Credit Loans, Canadian Swing Line Loans and
Canadian L/C Obligations at such time, after giving effect to such Credit Extension.




     (e) The making of such Credit Extension shall not cause any Borrower to be in default
under the covenants (including the restrictions on liens and debt) contained in any document
evidencing Junior Financing and each document evidencing Indebtedness incurred pursuant to
Section 7.03(a) or Section 7.03(b)(iii).



          Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by a
Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a), (b) and (d) have been satisfied on and as of the date of the
applicable Credit Extension.




ARTICLE V

REPRESENTATIONS AND WARRANTIES




          Each Borrower represents and warrants to the Administrative Agent and the Lenders that:



          5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and
each of its Subsidiaries (a) is a Person duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority to (i) own or lease its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents to which it is a party, and
(c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such qualification, except
in each case referred to in clause (c) to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.



          5.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is a party are within such Loan Party’s
corporate or other powers, have been duly authorized by all necessary corporate or other
organizational



93









 







action, and do not and will not (a) contravene the terms of any of such Person’s Organization
Documents, (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under (other than as permitted by Section 7.01), or require any payment to be made
under (i) any Contractual Obligation to which such Person is a party or affecting such Person or
the properties of such Person or any of its Subsidiaries or (ii) any material order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law; except with respect to any conflict, breach or
contravention or payment (but not creation of Liens) referred to in clause (b)(i), to the extent
that such conflict, breach, contravention or payment could not reasonably be expected to have a
Material Adverse Effect.



          5.03 Governmental Authorization; Other Consents. No material approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with (a) the execution,
delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other
Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral
Documents (including the priority thereof) or (d) the exercise by any Administrative Agent or any
Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the
Collateral granted by the Loan Parties in favor of the Administrative Agent (which filings are
disclosed in the Perfection Certificate) or (ii) the approvals, consents, exemptions,
authorizations, actions, notices and filings which have been duly obtained, taken, given or made
and are in full force and effect.



          5.04 Binding Effect. This Agreement and each other Loan Document has been duly
executed and delivered by each Loan Party that is party thereto. This Agreement and each other
Loan Document constitutes, a legal, valid and binding obligation of such Loan Party, enforceable
against each Loan Party that is party thereto in accordance with its terms, except as such
enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium or
other laws affecting creditors’ rights generally and by general principles of equity.



          5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all
material respects the financial condition of the Specified U.S. Borrower and its consolidated
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein. During the period from December 31, 2007 to and including the
Closing Date, there has been (i) no sale, transfer or other disposition by the Specified U.S.
Borrower or any of its consolidated Subsidiaries of any material part of the business or property
of the Specified U.S. Borrower and its consolidated Subsidiaries, taken as a whole and (ii) no
purchase or other acquisition by any of them of any business or property (including any Equity
Interests of any other Person) material in relation to the consolidated financial condition of the
Specified U.S. Borrower and its consolidated Subsidiaries, taken as a whole, in each case, which is
not reflected in the foregoing financial statements or in the notes thereto or has not otherwise
been disclosed in writing to the Lenders prior to the Closing Date. From December 31, 2007 to the
Closing Date, except as set forth on Schedule 5.05, the Specified U.S. Borrower and its
Subsidiaries has not incurred any material Indebtedness or other liabilities, direct or contingent,
that, in accordance with GAAP, would be required to be disclosed in the Specified U.S. Borrower’s
financial statements.



          (b) The unaudited consolidated balance sheet of the Specified U.S. Borrower and its
Subsidiaries dated March 29, 2008, and the related consolidated statements of income or operations,
stockholder’s investment and cash flows for the fiscal quarter ended on that date (i) were prepared
in



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accordance with GAAP consistently applied through the period covered thereby ,except as
otherwise expressly noted therein, and (ii) fairly present the financial condition of the Specified
U.S. Borrower and its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments.



          (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to result in a Material Adverse Effect.



          (d) The consolidated forecasted balance sheets, statements of income and statements of cash
flows of the Specified U.S. Borrower and its Subsidiaries for, and as of the end of, each fiscal
year commencing after December 31, 2007 and ending on or prior to December 31, 2013 delivered prior
to the Closing Date were prepared in good faith on the basis of the assumptions stated therein,
which assumptions were reasonable in light of the conditions existing at the time of delivery of
such forecasts; it being understood that actual results may vary from such forecasts and that such
variations may be material.



          (e) The consolidated forecasted balance sheets, statements of income and cash flows of the
Specified U.S. Borrower and its Subsidiaries delivered pursuant to Section 4.01 or
Section 6.01(e) were prepared in good faith on the basis of the assumptions stated therein,
which assumptions were reasonable in light of the conditions existing at the time of delivery of
such forecasts; it being understood that actual results may vary from such forecasts and that such
variations may be material.



          5.06 Litigation. Except as set forth on Schedule 5.06, there are no actions,
suits, proceedings, claims or disputes pending or, to the knowledge of any Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against
the Specified U.S. Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b)
either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.



          5.07 No Default. None of the Specified U.S. Borrower or any Subsidiary is in default
under or with respect to, or a party to, any Contractual Obligation that could, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.



          5.08 Ownership of Property; Liens. (a) Each Loan Party and each of its Subsidiaries
has good record and indefeasible title in fee simple to, or valid leasehold interests in, all real
property necessary in the ordinary conduct of its business, free and clear of all Liens except for
minor defects in title that do not materially interfere with its ability to conduct its business or
to utilize such assets for their intended purposes and Liens permitted by clauses (a),
(b), (c), (d), (e), (g), (h), (i),
(k), (j), (s), (v) and (y) of Section 7.01.



          (b) Set forth on Schedule 5.08(b) is a complete and accurate list of all real property
owned by any U.S. Loan Party or any of its Subsidiaries located in the United States and material
to the conduct of the business of the U.S. Loan Parties, as of the Closing Date, showing as of the
date hereof the street address (to the extent available), county or other relevant jurisdiction,
state and record owner.



          (c) Set forth on Schedule 5.08(c)(i) is a complete and accurate list of all leases of
domestic and Canadian real property material to the conduct of the business of the Loan Parties
located in the U.S. or Canada under which any Loan Party or any of its Subsidiaries is the lessee
as of the Closing



95









 







Date, showing as of the date hereof the street address, county or other relevant jurisdiction
(to the extent available), state, lessor and lessee.



          5.09 Environmental Compliance. Except as specifically disclosed on Schedule
5.09,



          (a) Each Loan Party and each of its Subsidiaries, and each Subsidiary of their operations and
properties is, and for the past three years, has been, in compliance with all applicable
Environmental Laws except to the extent any non-compliance could not reasonably be expected to
result in a material liability.



          (b) Except as could not reasonably be expected to result in a material liability, there are no
pending actions, claims, notices of violation or potential responsibility, or proceedings alleging
liability under or non-compliance with any Environmental Law on the part of any Loan Party or any
of its Subsidiaries.



          (c) Except as could not reasonably be expected to have a Material Adverse Effect, (i) none of
the properties currently or, to the knowledge of any Loan Party formerly, owned or operated by any
Loan Party or any of its Subsidiaries is listed or to the knowledge of any Loan Party proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state, provincial, territorial,
municipal or local list; (ii) there are no and never have been any underground or aboveground
storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any property currently owned or
operated by any Loan Party or any of its Subsidiaries or, to its knowledge, on any property
formerly owned or operated by any Loan Party or any of its Subsidiaries in each case, that would
reasonably be expected to result in a material liability; (iii) there is no asbestos or
asbestos-containing material in friable form or condition on any property currently owned or
operated by any Loan Party or any of its Subsidiaries; and (iv) Hazardous Materials have not been
Released on, under or from any property currently or, to their knowledge, formerly owned or
operated by any Loan Party or any of its Subsidiaries except for such releases, discharges or
disposal that were in material compliance with Environmental Laws.



          (d) None of the properties of the Loan Parties contain any Hazardous Materials in amounts or
concentrations which (i) constitute a violation of or (ii) could give rise to liability under,
Environmental Laws, which violations and liabilities, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.



          (e) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any investigation or
assessment or response or other corrective action relating to any actual or threatened Release of
Hazardous Materials at, on, under or from any location, either voluntarily or pursuant to the order
of any Governmental Authority or the requirements of any Environmental Law except for any such
investigations, assessments, responses or other actions that, in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



          (f) All Hazardous Materials generated, used, treated, handled or stored at, or transported to
or from, any property currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner which would not reasonably expected to result in a
Material Adverse Effect.



          5.10 Insurance. The properties of each Loan Party and its Subsidiaries are insured
with financially sound and reputable insurance companies, in such amounts (after giving effect to
any self-insurance reasonable and customary for similarly situated Persons engaged in the same or
similar



96









 







businesses as Specified U.S. Borrower and its Subsidiaries) with such deductibles and covering
such risks as are customarily carried by prudent companies engaged in similar businesses and owning
similar properties in localities where each Loan Party or the applicable Subsidiary operates and as
required by Sections 6.07 and 6.18.



          5.11 Taxes. Each Loan Party and its Subsidiaries have filed all federal, provicial
and material state, territorial, foreign and other material tax returns and reports required to be
filed, and have paid all federal, provincial and material state, territorial and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those (a) which are not overdue by
more than thirty (30) days or (b) which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been provided in accordance
with GAAP.



          5.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other applicable Federal or state Laws. Each Plan
that is intended to qualify under Section 401(a) of the Code has received a favorable determination
letter from the IRS, or has been established pursuant to a prototype plan that has received a
favorable opinion letter from the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the knowledge of any Borrower, nothing has
occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and each
ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any amortization period pursuant
to Section 412 of the Code has been made with respect to any Plan.



          (b) There are no pending or, to the knowledge of any Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could be
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



          (c) (i) No ERISA Event has occurred within the prior 2 years or is reasonably expected to
occur; (ii) no Pension Plan has an “accumulated funding deficiency” (as defined in Section 412 of
the Code), whether or not waived, and no application for a waiver of the minimum funding standard
has been filed with respect to any Pension Plan; (iii) neither any Loan Party nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction
that could be subject to Sections 4069 or 4212(c) of ERISA; and (vi) the present value of all
accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than $80,000,000 the fair
market value of the assets of all such underfunded Pension Plans; except, with respect to each of
the foregoing clauses of this Section 5.12(c), as could not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.



          (d) Except where noncompliance would not reasonably be expected to result in a Material
Adverse Effect, each Foreign Plan has been maintained in substantial compliance with its terms and
with the requirements of any and all applicable laws, statutes, rules, regulations and orders and
has



97









 







been maintained, where required, in good standing with applicable Governmental Authorities,
and neither the Specified U.S. Borrower nor any Subsidiary have incurred any material obligation in
connection with the termination of or withdrawal from any Foreign Plan.



          5.13 Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, each Loan
Party has no Subsidiaries other than those specifically disclosed in Schedule 5.13, and all
of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid
and non-assessable and are owned free and clear of all Liens except (i) those created under the
Collateral Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01.
As of the Closing Date, no Loan Party has any equity investments in any other corporation or entity
other than those specifically disclosed in Schedule 5.13.



          5.14 Margin Regulations; Investment Company Act. (a) The Borrowers are not engaged
and will not engage, principally or as one of their important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock and no Credit Extension
will be used to purchase or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock. The Borrowers do not own any margin stock.



          (b) None of the Specified U.S. Borrower, any Person Controlling the Specified U.S. Borrower or
any Subsidiary is or is required to be registered as an “investment company” under the Investment
Company Act of 1940.



          5.15 Disclosure. No report, financial statement, certificate or other information
(including, without limitation, the Information Memorandum) furnished (whether in writing or
orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or any other Loan Document (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
materially misleading; provided that, with respect to projected financial information, the
Specified U.S. Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time of preparation; it being understood that such
projections may vary from actual results and that such variances may be material.



          5.16 Compliance with Laws. Each Loan Party and its Subsidiaries is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



          5.17 Intellectual Property; Licenses, Etc. Each Loan Party and its Subsidiaries own,
or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for the operation of their respective businesses,
without, to the knowledge of the Borrowers, conflict with the rights of any other Person, except to
the extent such conflicts or failures to own or possess such rights, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrowers, no slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by any Loan Party or any
Subsidiary infringes upon any rights held by any other Person



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except for such infringements, individually or in the aggregate, which could not reasonably be
expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing
is pending or, to the knowledge of the Borrowers, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



          5.18 Solvency. Each Loan Party is, individually and together with its Subsidiaries on
a consolidated basis, Solvent.



          5.19 Casualty, Etc. Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could reasonably be expected to have a Material
Adverse Effect.



          5.20 Perfection, Etc.. All filings and other actions necessary or desirable to
perfect and protect the Liens in the Collateral created under the Collateral Documents and to
render such Liens opposable to third parties have been or will be, during the periods required by
the Loan Documents, duly made or taken and are in full force and effect, and the Collateral
Documents are effective to create in favor of (i) the Administrative Agent for the benefit of the
Secured Parties and (ii) the Administrative Agent for the benefit of the Canadian Secured Parties,
a valid and, together with such filings and other actions, perfected first priority Lien in the
U.S. Collateral and the Canadian Collateral, respectively, securing the payment of the Secured
Obligations (in the case of the U.S. Collateral) and the Canadian Obligations (in the case of the
Canadian Collateral), subject to Liens permitted by Section 7.01. The Loan Parties are the
legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens
created under the Loan Documents and permitted by Section 7.01.



          5.21 [Reserved].



          5.22 Tax Shelter Regulations. The Specified U.S. Borrower does not intend to treat
the Loans and/or Letters of Credit and related transactions as being a “reportable transaction”
(within the meaning of Treasury Regulation Section 1.6011-4). In the event the Specified U.S.
Borrower determines to take any action inconsistent with such intention, it will promptly notify
the Administrative Agent thereof. If the Specified U.S. Borrower so notifies the Administrative
Agent, the Specified U.S. Borrower acknowledges that one or more of the Lenders may treat its Loans
and/or its interest in Swing Line Loans and/or Letters of Credit as part of a transaction that is
subject to Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, may
maintain the lists and other records required by such Treasury Regulation.



          5.23 Anti-Terrorism Law. (a) No Loan Party and, to the knowledge of the Borrowers,
none of their Affiliates is in violation of any laws relating to terrorism or money laundering
(“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the “Executive Order”), the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 or
the Proceeds of Crime (Money-Laundering) and Terrorist Financing Act (Canada).



          (b) No Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other
agent of any Loan Party acting or benefiting in any capacity in connection with the Loans is any of
the following:




     (i) a person that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;



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     (ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;




     (iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;




     (iv) a person that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or




     (v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other
replacement official publication of such list or similarly named by any similar foreign
Governmental Authority.



          (c) No Loan Party and, to the knowledge of the Borrowers, no broker or other agent of any Loan
Party acting in any capacity in connection with the Loans (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the benefit of any
person described in paragraph (b) above, (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the Executive Order, or
(iii) engages in or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.




          5.24 Accounts. Without limiting the provisions of Section 5.15 or the
statements contained in any Borrowing Base Certificate, each Borrower hereby represents and
warrants that the statements in each Borrowing Base Certificate are or will be when such Borrowing
Base Certificate is delivered true and correct in all respects. The Administrative Agent may rely,
in determining which Accounts are Eligible Accounts, on all statements and representations made by
the Borrowers with respect thereto. Each Borrower warrants, with respect to each Account at the
time it is shown as an Eligible Account in a Borrowing Base Certificate, that:





     (a) it is genuine and in all respects what it purports to be, and is not evidenced by a
judgment;




     (b) it arises out of a completed, bona fide sale and delivery of goods in the ordinary
course of business, and substantially in accordance with any purchase order, contract or
other document relating thereto;




     (c) it is for a sum certain, maturing as stated in the invoice covering such sale, a
copy of which has been furnished or is available to the Administrative Agent on request;




     (d) it is not subject to any offset, Lien (other than the Administrative Agent’s Lien),
deduction, defense, dispute, counterclaim or other adverse condition except as arising in
the ordinary course of business and disclosed to the Administrative Agent; and it is
absolutely owing by the Account Debtor, without contingency in any respect;




     (e) no purchase order, agreement, document or Applicable Law restricts assignment of
the Account to the Administrative Agent (regardless of whether, under the UCC or the PPSA,
the restriction is ineffective), and the applicable Borrower is the sole payee or remittance
party shown on the invoice;




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     (f) no extension, compromise, settlement, modification, credit, deduction or return
has been authorized with respect to the Account, except discounts or allowances granted in
the ordinary course of business for prompt payment that are reflected on the face of the
invoice related thereto and in the reports submitted to the Administrative Agent hereunder;
and




     (g) to the best of each Borrower’s knowledge, (i) there are no facts or circumstances
that are reasonably likely to impair the enforceability or collectibility of such Account;
(ii) the Account Debtor had the capacity to contract when the Account arose, continues to
meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating
or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing
business; and (iii) there are no proceedings or actions threatened or pending against any
Account Debtor that could reasonably be expected to have a material adverse effect on the
Account Debtor’s financial condition.



          5.25 Canadian Pension Plans. The Canadian Pension Plans are duly registered under the
Income Tax Act (Canada) and all other applicable laws which require registration and no event has
occurred which is reasonably likely to cause the loss of such registered status. All material
obligations of each Loan Party (including fiduciary, funding, investment and administration
obligations) required to be performed in connection with the Canadian Pension Plans and Canadian
Benefit Plans and any funding agreements therefor have been performed in a timely fashion, except
where (i) the failure to do so could not reasonably be expected to have a Material Adverse Effect
and (ii) no Lien (other than Liens permitted pursuant to Section 7.01) is created thereby.
There have been no improper withdrawals or applications of the assets of the Canadian Pension Plans
or the Canadian Benefit Plans by any Loan Party or its Affiliates except where such withdrawals or
applications could not reasonably be expected to have a Material Adverse Effect. There are no
material outstanding disputes involving any Loan Party or its Affiliates concerning the assets of
the Canadian Pension Plans or the Canadian Benefit Plans except where such disputes could not
reasonably be expected to have a Material Adverse Effect. Except as disclosed in Schedule
5.25 hereto based on the most recent actuarial valuations filed with Government Authorities,
each of the Canadian Pension Plans was fully funded on a solvency basis as of the date of such
actuarial valuations.




ARTICLE VI

AFFIRMATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than any contingent indemnification obligation as to which no claim has been
asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each of the Specified U.S. Borrower shall, and shall (except in the case of the covenants set
forth in Sections 6.01, 6.02 and 6.03) cause each Subsidiary to:




          6.01 Financial Statements. Deliver to the Administrative Agent for further
distribution to each Lender:





     (a) as soon as available, but in any event within one hundred and five (105) days
after the end of each fiscal year of the Specified U.S. Borrower (or, if earlier, the date
on which the Specified U.S. Borrower’s Form 10-K would be required to be filed with the SEC
(after giving effect to any extension)), a consolidated balance sheet of the Specified
U.S. Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, changes in stockholder’s investment, and
cash flows for such fiscal year, setting forth



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in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by a report and opinion of Ernst & Young, LLP or any other
independent certified public accountant of nationally recognized standing, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit;




     (b) as soon as available, but in any event within sixty (60) days after the end of
each of the first three (3) fiscal quarters of each fiscal year of the Specified U.S.
Borrower (or, if earlier, the date on which the Specified U.S. Borrower’s 10-Q would be
required to be filed with the SEC (after giving effect to any extension)), a consolidated
balance sheet of the Specified U.S. Borrower and its Subsidiaries as at the end of such
fiscal quarter, and the related consolidated statements of income or operations, changes in
stockholders’ investment, and cash flows for such fiscal quarter and for the portion of the
fiscal year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer
of the Specified U.S. Borrower as fairly presenting in all material respects the financial
condition, results of operations, shareholders’ equity and cash flows of the Specified U.S.
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes;




     (c) as soon as available, but in any event within sixty (60) days after the end of
each of the first 11 months of each fiscal year of the Specified U.S. Borrower, a
consolidated balance sheet of the Specified U.S. Borrower and its Subsidiaries as of the
end of such month, and the related consolidated statements of income or operations, for
such month, in the form customarily prepared by management of the Specified U.S. Borrower
for delivery to investors;




     (d) at the time of delivery of the financial statements provided for in Sections
6.01(a) and (b) above, a management’s discussion and analysis of the financial
condition and results of operation for such fiscal quarter or fiscal year, as the case may
be, as compared to the previous fiscal period; provided that a copy of the
Specified U.S. Borrower’s Form 10-K or Form 10-Q for the applicable period shall be deemed
to satisfy such requirement;




     (e) as soon as available, but in any event no later than seventy-five (75) days after
the end of each fiscal year, forecasts prepared by management of the Specified U.S.
Borrower, in form reasonably satisfactory to the Administrative Agent, of consolidated
balance sheets, income statements and cash flow statements of the Specified U.S. Borrower
and its Subsidiaries. All forecasts delivered hereunder shall be prepared on an annual
basis for the fiscal year following such fiscal year then ended);




     (f) On or before the 20th day after the end of each fiscal month of the Specified U.S.
Borrower (which monthly Borrowing Base Certificate shall be furnished regardless of whether
weekly Borrowing Base Certificates are required to be furnished pursuant to the second
succeeding sentence), the Borrower Agent shall deliver to the Administrative Agent (and the
Administrative Agent shall promptly deliver same to the Lenders) a
Borrowing Base Certificate in respect of each of the U.S. Borrowing Base and the
Canadian Borrowing Base, prepared as of the close of business of the previous month and at
such other times as the Administrative Agent may request. All calculations of Excess
Availability in any Borrowing Base Certificate shall originally be made by the Borrowers
and certified by a Responsible Officer of each of the Specified U.S. Borrower and the
Canadian Borrower, provided that the Administrative Agent may from time to time review and
adjust any such calculation in its Credit Judgment to the extent



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the calculation is not
made in accordance with this Agreement or does not accurately reflect the Availability
Reserve. Upon the occurrence and during the continuation of a Cash Dominion Event, or if
otherwise requested by the Administrative Agent in its discretion, the Borrowers shall
deliver to Administrative Agent a weekly Borrowing Base Certificate within three (3)
Business Days after the end of each calendar week (each calendar week deemed, for purposes
hereof, to end on a Friday), updated as of the close of business on the last Business Day
of the immediately preceding calendar week (it being understood that inventory amounts
shown in such Borrowing Base Certificate will be based on the inventory amount for the most
recently ended month) unless Administrative Agent otherwise agrees. Borrowing Base
Certificates shall be delivered with such supporting documentation and additional reports
with respect to the U.S. Borrowing Base and the Canadian Borrowing Base as the
Administrative Agent shall reasonably request.



          6.02 Certificates; Other Information. Deliver to the Administrative Agent for further
distribution to each Lender, in form and detail reasonably satisfactory to the Administrative Agent
and the Required Lenders:





     (a) no later than five (5) days after the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Event of Default under Section
7.11 or, if any such Event of Default shall exist, stating the nature and status of
such event;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate
signed by a Responsible Officer of U.S. Borrower including, during each Covenant Trigger
Event, in the event of any change in generally accepted accounting principles used in the
preparation of such financial statements, if necessary for the determination of compliance
with Section 7.11, a statement of reconciliation conforming such financial
statements to GAAP and (ii) a description of each event, condition or circumstance during
the last fiscal quarter covered by such Compliance Certificate requiring a mandatory
prepayment under Section 2.05(b);




     (c) promptly after the same are available, (i) copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Specified U.S. Borrower, (ii) copies of all annual, regular, periodic and special reports
and registration statements which the Specified U.S. Borrower or Holdings may file or be
required to file, copies of any report, filing or communication with the SEC under Section
13 or 15(d) of the Securities Exchange Act of 1934, or with any Governmental Authority that
may be substituted therefor, or with any national securities exchange, and (iii) a copy of
any “management letter” received by any Loan Party from its certified public accountants
identifying any significant deficiencies in the design or operation of internal controls
which could materially adversely affect the Specified U.S. Borrower’s ability to record,
process, summarize and report financial data, and the management’s responses
thereto (provided that such disclosure by the Specified U.S. Borrower is authorized by
such accountants (and the Specified U.S. Borrower agrees to request that such certified
public accountants permit such disclosure));




     (d) promptly after the furnishing thereof, copies of any requests or notices received
by any Loan Party (other than in the ordinary course of business) from, or statements or
reports furnished to, any holder of debt securities of any Loan Party or of any of its
Subsidiaries pursuant to the terms of any Junior Financing Documentation or the Senior
Secured Notes in a principal amount greater than the Threshold Amount and not otherwise
required to be furnished to the Lenders pursuant to any other clause of this Section
6.02;



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     (e) promptly after the receipt thereof by any Loan Party or any of its Subsidiaries,
copies of each notice or other correspondence received from the SEC (or comparable agency
in any applicable non-U.S. jurisdiction) concerning any material investigation or other
material inquiry by such agency regarding financial or other operational results of any
Loan Party or any of its Subsidiaries;




     (f) promptly after the assertion or occurrence thereof, notice of any occurrence,
event or action that could result in a material Environmental Liability on the part of any
Loan Party or any of its Subsidiaries or of any noncompliance by any Loan Party or any of
its Subsidiaries with any Environmental Law or Environmental Permit;




     (g) concurrently with any delivery of financial statements under Section
6.01(a), a certificate of a Responsible Officer setting forth the information required
pursuant to the Perfection Certificate Supplement or confirming that there has been no
change in such information since the date of the Perfection Certificate or latest
Perfection Certificate Supplement;




     (h) promptly after U.S. Borrower has notified the Administrative Agent of any
intention by U.S. Borrower to treat the Loans and/or Letters of Credit and related
transactions as being a “reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;




     (i) upon request by the Administrative Agent, copies of: (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by any Loan Party or
ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii)
the most recent actuarial valuation report for each Pension Plan; (iii) all notices
received by any Loan Party or ERISA Affiliate from a Multiemployer Plan sponsor or any
governmental agency concerning an ERISA Event; (iv) such other documents or governmental
reports or filings relating to any Plan as the Administrative Agent shall reasonably
request; and (v) each annual information return to be filed in accordance with the
applicable pension standards legislation in connection with each Canadian Pension Plan; and




     (j) promptly, such additional information regarding the business, legal, financial or
corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the
Loan Documents, as any Administrative Agent or any Lender may from time to time reasonably
request.



          Documents required to be delivered pursuant to Section 6.01(a), (b),
(c), (d) or (e) or Section 6.02(d) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be delivered electronically
and if so delivered, shall be deemed to have been delivered on the date (i) on which the Specified
U.S. Borrower posts such documents, or provides a link thereto on the Specified U.S. Borrower’s
website on the Internet at the website address listed on Schedule 11.02; or (ii) on which
such documents are posted on the Specified U.S. Borrower’s behalf on IntraLinks/ IntraAgency or
another relevant website, if any, to which each Lender and each Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by an Administrative Agent);
provided that (i) the Specified U.S. Borrower shall deliver paper copies of such documents to the
Administrative Agent for further distribution to each Lender until a written request to cease
delivering paper copies is given by the each Administrative Agent or such Lender and (ii) the
Specified U.S. Borrower shall notify (which may be by facsimile or electronic mail) each
Administrative Agent of the posting of any such documents and provide to each Administrative Agent
by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance U.S. Borrower



104









 







shall be required to provide paper
copies of the Compliance Certificates required by Section 6.02(b) to the Administrative
Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by any Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.



          Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Bookrunners
will make available to the Lenders and the L/C Issuers materials and/or information provided by or
on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrowers or their Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees
that it will use commercially reasonable efforts to identify that portion of the Borrower Materials
that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,”
each Borrower shall be deemed to have authorized the Administrative Agent, the Bookrunners, the L/C
Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Borrowers or their
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent and the Bookrunners shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Side Information.”




          6.03 Notices. Promptly after obtaining knowledge thereof notify the Administrative
Agent for further distribution to each Lender:





     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including arising out of or resulting from (i) breach or
non-performance of, or any default under, a Contractual Obligation of any Loan Party or any
Subsidiary, (ii) any dispute, litigation, investigation, proceeding or suspension between
any Loan Party or any Subsidiary and any Governmental Authority, (iii) the commencement of,
or any material development in, any litigation or proceeding affecting any Loan Party or
any Subsidiary, including pursuant to any applicable Environmental Laws and or in respect
of IP Rights, or (iv) the occurrence of any ERISA Event or similar event of noncompliance
with respect to a Foreign Plan; and




     (c) of the (i) occurrence of any Disposition of Collateral for which a Borrower is
required to make a mandatory prepayment pursuant to Section 2.05, (ii) receipt of
any Extraordinary Receipt for which a Borrower is required to make a mandatory prepayment
pursuant to Section 2.05 or (iii) receipt of any proceeds from the issuance of
equity interests or indebtedness.



          Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Specified U.S. Borrower setting forth details of the occurrence referred to




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therein
and stating what action the Specified U.S. Borrower or other applicable Loan Party has taken and
proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.



          6.04 Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall
become due and payable, all its obligations and liabilities, including (a) all material Tax
liabilities, assessments and governmental charges or levies upon it or its properties or assets,
unless the same are being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the Borrowers or such
Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property,
unless such claims would not become a Lien on the Collateral and the same are being contested in
good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with
GAAP are being maintained by the Specified Borrowers or such Subsidiary; and (c) all Indebtedness,
as and when due and payable (after giving effect to any applicable grace periods), but subject to
any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.




          6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force
and effect its legal existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.04 or 7.05, (b) take all reasonable action to
maintain all rights, privileges (including its good standing), permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect, and (c) preserve or renew
all of its registered patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.




          6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in good working order,
repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and
(b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions
and additions thereof or thereto in accordance with prudent industry practice.




          6.07 Maintenance of Insurance. Maintain (a) with financially sound and reputable
insurance companies, insurance with respect to its properties and business against loss or damage
of the kinds customarily insured against by Persons engaged in the same or similar business, of
such types and in such amounts (after giving effect to any self-insurance reasonable and customary
for similarly situated Persons engaged in the same or similar businesses as the Specified U.S.
Borrower and its Subsidiaries) as are customarily carried under similar circumstances by such other
Persons and (b) without limitation to the foregoing the insurance arrangements in respect of the
Collateral required by the Security Agreements. If any portion of any building on real property
subject to any Mortgage is located in an area identified by the Federal Emergency Management Agency
as an area having special flood hazards and in which flood insurance has been made available under
the National Flood Insurance Act of 1968 (or any amendment or successor act thereto), then the
applicable Loan Party (or its relevant Subsidiary) shall maintain, or cause to be maintained, with
a financially sound and reputable insurer, flood insurance in an amount sufficient to comply with
all applicable rules and regulations promulgated pursuant to such Act.




          6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except if the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.




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          6.09 Books and Records. Maintain proper books of record and account, in which full,
true and correct entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the Specified U.S. Borrower
or such Subsidiary, as the case may be.




          6.10 Inspections; Appraisals. (a) Permit the Administrative Agent from time to time,
subject (except when an Event of Default has occurred and is continuing) to reasonable notice and
normal business hours, to visit and inspect the properties of any Borrower or Subsidiary, inspect,
audit and make extracts from any Borrower’s or Subsidiary’s books and records, and discuss with its
officers, employees, agents, advisors and independent accountants such Borrower’s or Subsidiary’s
business, financial condition, assets, prospects and results of operations. Lenders may
participate in any such visit or inspection, at their own expense. Neither the Administrative
Agent nor any Lender shall have any duty to any Borrower to make any inspection, nor to share any
results of any inspection, appraisal or report with any Borrower. Borrowers acknowledge that all
inspections, appraisals and reports are prepared by the Administrative Agent and Lenders for their
purposes, and Borrowers shall not be entitled to rely upon them.




          (b) Reimburse the Administrative Agent for all charges, costs and expenses of the
Administrative Agent in connection with (i) examinations of any Loan Party’s books and records or
any other financial or Collateral matters as the Administrative Agent deems appropriate, up to
twice per fiscal year; and (ii) appraisals of Inventory up to twice per fiscal year (or, in each
case with respect to clauses (i) and (ii) three times per fiscal year if the third audit and/or
appraisal occurs during a period when Excess Availability is less than 25% of the Total Borrowing
Base); provided, however, that if an examination or appraisal is initiated while an
Event of Default has occurred and is continuing, all charges, costs and expenses therefor shall be
reimbursed by Borrowers without regard to such limits; provided further that the
limitations on the number of examinations and appraisals in a fiscal year shall be without giving
effect to examinations and appraisals in connection with the Required Audit. Subject to and
without limiting the foregoing, Borrowers specifically agree to pay the Administrative Agent’s then
standard charges for each day that an employee of the Administrative Agent or its branches or
Affiliates is engaged in any examination activities, and shall pay the standard charges of the
Administrative Agent’s internal appraisal group. This Section shall not be construed to limit the
Administrative Agent’s right to conduct examinations or to obtain appraisals at any time in its
discretion, nor to use third parties for such purposes.




          6.11 Use of Proceeds. The Borrowers will use the proceeds of each Credit Extension
for general corporate purposes not in contravention of any Law or of any Loan Document.




          6.12 Covenant to Guarantee Obligations and Give Security. (a) Upon the formation or
acquisition of any new direct or indirect Subsidiaries (other than Excluded Subsidiaries) by any
U.S. Loan Party or upon any Domestic Subsidiary ceasing to meet the definition of an Excluded
Subsidiary or upon the acquisition of any Material Real Estate, or, subject to the terms of the
Intercreditor Agreement, upon the granting of any Lien to secure the Senior Secured Notes (in which
case if the assets covered thereby do not constitute ABL Priority Collateral the provisions of this
Section shall be deemed to refer to a second-priority security interest junior to the Lien securing
the Senior Secured Notes on the terms set forth in the Intercreditor Agreement), the Borrower Agent
shall promptly notify the Administrative Agent thereof and if such property, in the reasonable
judgment of the Administrative Agent, shall not already be subject to a perfected Lien in favor of
the Administrative Agent, for the benefit of the Secured Parties, then the applicable Loan Parties
shall, in each case at the applicable Borrower’s expense:





     (i) in connection with the formation or acquisition of a Subsidiary or upon any
Domestic Subsidiary which was an Excluded Subsidiary ceasing for any reason to meet the



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definition thereof, within thirty (30) days after such formation, acquisition, or change of
status or such longer period as the Administrative Agent may agree in its sole discretion,
(A) cause each such Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of a
Foreign Subsidiary) to duly execute and deliver to the Administrative Agent a guaranty or
guaranty supplement, in form and substance reasonably satisfactory to the Administrative
Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents, and (B)
subject to Section 6.12(d), deliver all certificates representing the Pledged
Interests of each such Subsidiary owned by a U.S. Loan Party, accompanied by undated stock
powers or other appropriate instruments of transfer executed in blank, and all instruments
evidencing the Pledged Debt of each such Subsidiary owned by a U.S. Loan Party, indorsed in
blank to the Administrative Agent, together with, if requested by the Administrative Agent,
supplements to the U.S. Security Agreement with respect to the pledge of any Equity
Interests or Indebtedness; provided that only 66% of Equity Interests of any
Foreign Subsidiary owned by a U.S. Loan Party shall be required to be pledged as Collateral
if such Foreign Subsidiary is a “controlled foreign corporation” for U.S. federal income
tax purposes,




     (ii) within ten (10) days after such request, formation or acquisition, or such longer
period as the Administrative Agent may agree in its sole discretion, furnish to the
Administrative Agent a Perfection Certificate Supplement,




     (iii) within thirty (30) days after such request, formation or acquisition or change
of status, or such longer period as the Administrative Agent may agree in its sole
discretion, duly execute and deliver, and cause each such Subsidiary that is not a Foreign
Subsidiary (or a Subsidiary of a Foreign Subsidiary) to duly execute and deliver, to the
Administrative Agent Mortgages encumbering Material Real Estate, Security Agreement
Supplements, IP Security Agreement Supplements and other security agreements, as specified
by and in form and substance reasonably satisfactory to the Administrative Agent
(consistent with the U.S. Security Agreement, IP Security Agreement and Mortgages),
securing payment of all the Obligations and constituting Liens on all such properties,




     (iv) within thirty (30) days after such request, formation, acquisition or change of
status, or such longer period, not to exceed an additional sixty (60) days, as the
Administrative Agent may agree in its sole discretion, take, and cause such Subsidiary that
is not a Foreign Subsidiary (or a Subsidiary of a Foreign Subsidiary) to take, whatever
action (including, without limitation, the recording of Mortgages on Material Real Estate,
the filing of UCC or PPSA financing statements, the giving of notices and the endorsement
of notices on title documents and delivery of stock and membership interest certificates
and the delivery of fully-executed Deposit Account Control Agreements, Securities Account
Control Agreements and Commodity Account Control Agreements) may be necessary or advisable
in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent
(or in any representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the Mortgages on Material
Real Estate, Security Agreement Supplements, IP Security Agreement Supplements and security
agreements delivered pursuant to this Section 6.12, enforceable against all third
parties in accordance with their terms,




     (v) within thirty (30) days after the request of the Administrative Agent, or such
longer period as the Administrative Agent may agree in its sole discretion, deliver to the
Administrative Agent, signed copies of opinions, addressed to the Administrative Agent and
the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to such matters as the Administrative Agent may reasonably request,



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     (vi) as promptly as practicable after the request of the Administrative Agent, to the
applicable Administrative Agent with respect to each parcel of real property on which
Mortgages on Material Real Estate that is the subject of such request, title insurance in
scope, form and substance reasonably satisfactory to the applicable Administrative Agent
and, to the extent available, land surveys and environmental assessment reports, and




     (vii) at any time and from time to time, promptly execute and deliver any and all
further instruments and documents and take all such other action as the applicable
Administrative Agent in its reasonable judgment may deem necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the Liens of, such
guaranties, Mortgages, Security Agreement Supplements, IP Security Agreement Supplements
and security agreements; and.



          (b) Upon the formation or acquisition of any new direct or indirect Subsidiaries that are
Canadian Subsidiaries (other than Excluded Subsidiaries) by any Canadian Loan Party, the Canadian
Borrower shall promptly notify the Administrative Agent thereof and the Canadian Borrower shall,
subject to applicable laws, in each case, at the Canadian Borrower’s expense:





     (i) in connection with the formation or acquisition of a Subsidiary that is not an
Excluded Subsidiary, within thirty (30) days after such formation, acquisition or change of
status or such longer period as the Administrative Agent may agree in its sole discretion,
cause each such Subsidiary (if it has not already done so) to duly execute and deliver to
the Administrative Agent a guaranty or guaranty supplement, in form and substance
reasonably satisfactory to the Administrative Agent, guaranteeing the other Canadian Loan
Parties’ obligations under the Loan Documents,




     (ii) within ten (10) days after such request, formation or acquisition, or such longer
period as the Administrative Agent may agree in its sole discretion, furnish to each
Administrative Agent a Perfection Certificate Supplement,




     (iii) within thirty (30) days after such request, formation or acquisition or change
of status, or such longer period as the Administrative Agent may agree in its sole
discretion, duly execute and deliver (if it has not already done so), and cause each such
Subsidiary that is a Canadian Subsidiary to duly execute and deliver, to the Administrative
Agent new Canadian Security Agreements and/or Canadian Security Agreement Supplements and
other security agreements charging a Lien in such Subsidiaries’ assets of the type
constituting ABL Priority Collateral, as specified by and in form and substance reasonably
satisfactory to the Administrative Agent (consistent with the Canadian Security Agreement),
securing payment of all the Canadian Obligations under the Loan Documents and constituting
Liens on all such properties,




     (iv) within thirty (30) days after such request, formation, acquisition or change of
status, or such longer period, not to exceed an additional sixty (60) days, as the
Administrative Agent may agree in its sole discretion, take, and cause such Subsidiary that
is a Canadian Subsidiary or such parent to take (if it has not already done so), whatever
action (including, without limitation, the filing of PPSA or UCC financing statements and
other similar filings in all applicable jurisdictions) may be necessary or advisable in the
reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in
any representative of the Administrative Agent designated by it) valid and subsisting Liens
on the assets of the type constituting ABL Priority Collateral purported to be subject to
the Canadian Security Agreement Supplements and other security agreements delivered
pursuant to this Section 6.12, enforceable against all third parties in accordance
with their terms, and



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     (v) within thirty (30) days after the request of the Administrative Agent, or such
longer period as the Administrative Agent may agree in its sole discretion, deliver to the
Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and
the other Canadian Secured Parties, of counsel for the Loan Parties reasonably acceptable
to the Administrative Agent as to such matters as the Administrative Agent may reasonably
request;



          (c) At any time upon the reasonable request of the Administrative Agent, or such longer period
as the Administrative Agent may agree in its sole discretion, promptly execute and deliver any and
all further instruments and documents and take all such other action as the Administrative Agent
may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting
and preserving the Liens of, such guaranties, deeds of trust, trust deeds, deeds to secure debt,
mortgages, hypothecs, leasehold mortgages, leasehold deeds of trust, Security Agreement
Supplements, IP Security Agreement Supplements and other security and pledge agreements.




          (d) Notwithstanding the foregoing, (x) the Administrative Agent shall not perfect its Lien in
any assets (other than (1) ABL Collateral and (2) Term Priority Collateral that secures the Senior
Secured Notes) as to which the Administrative Agent shall determine, in its reasonable discretion,
that the cost of perfecting such Lien (including any mortgage, stamp, intangibles or other tax) are
excessive in relation to the benefit to the Secured Parties of the security afforded thereby, (y)
the Loan Parties shall not be required to take any action to pledge any Equity Interests of a
Foreign Subsidiary unless such Foreign Subsidiary (i) is pledged to secure the Senior Secured Notes
or (ii) has either (A) gross revenues (on a consolidated basis with its Subsidiaries) for the most
recently ended period of four consecutive fiscal quarters equal to or greater than 2.5% of the
consolidated gross revenues of the Specified U.S. Borrower and its Subsidiaries for such period or
(B) total assets (on a consolidated basis with its Subsidiaries) at the end of the most recently
completed fiscal quarter equal to or greater than 2.5% of consolidated total assets of the
Specified U.S. Borrower and its Subsidiaries as at such date (any such Subsidiary, a “Material
Foreign Subsidiary”) and (z) in no event shall any Loan Party be required to take any action in
order to pledge any Equity Interests of any Subsidiary organized under the laws of the People’s
Republic of China.




          6.13 Compliance with Environmental Laws. (a) Except, in each case, to the extent
that the failure to do so could not reasonably be expected to result in a material liability,
comply, and take all commercially reasonable steps to cause all lessees and other Persons operating
or occupying its properties to comply with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its operations and properties;
and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to address Hazardous Materials at, on, under or emanating from
any of its properties, in accordance with the requirements of all applicable Environmental Laws.




          (b) If a Default caused by reason of a breach of Section 5.09 or Section
6.13(a) shall have occurred and be continuing for more than 20 days without the Borrowers and
their Subsidiaries commencing activities reasonably necessary to cure such Default or contest, in
good faith, the asserted basis for such Event of Default, at the written request of the
Administrative Agent, provide to the Lenders within 45 days after such request, at the expense of
the Loan Party, an environmental assessment report for any property owned or operated by any
Borrower or any of its Subsidiaries, including, where appropriate, any soil and/or groundwater
sampling, reasonably relating to any matters that are the subject of such Default, prepared by an
environmental consulting firm of the Borrowers’ reasonable selection and, in the form and
substance, reasonably acceptable to the applicable Administrative Agent and indicating as relevant
the presence or absence of Hazardous Materials and the estimated cost to address any non-compliance
with or conduct any response or other corrective action with respect to such Hazardous Material
required under any Environmental Law.




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          6.14 Further Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (i) correct any material defect or error that may be
discovered in the execution, acknowledgment, filing or recordation of any Loan Document or other
document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such further acts, deeds,
certificates, assurances and other instruments as the Administrative Agent, or any Lender through
the Administrative Agent, may reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder or (C) assure, convey, grant, assign, transfer, preserve, protect
and confirm more effectively unto the Secured Parties the rights granted or now or hereafter
intended to be granted to the Secured Parties under any Loan Document, and cause each of its
Subsidiaries to do so.




          6.15 Compliance with Terms of Leaseholds. Make all payments and otherwise perform all
obligations in respect of all leases of real property of the Loan Parties material to the business
of the Loan Parties, keep such leases in full force and effect and not allow such leases to lapse
or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any receipt of any notice of material default by any party with respect to
such leases and cooperate with the Administrative Agent in all respects to cure any such material
default, and cause each of its Subsidiaries to do so, except, in any case, (a) where the failure to
do so, either individually or in the aggregate, could not be reasonably likely to have a Material
Adverse Effect or (b) for terminations, lapses and amendments in the ordinary course of business.




          6.16 [Reserved].




          6.17 Designation as Senior Debt. Designate all Obligations as “Designated Senior
Indebtedness” under, and as defined in, all Junior Financing Documentation.




          6.18 Collateral Administration.





     (a) Administration of Accounts. (i) Records and Schedules of
Accounts. Each Loan Party shall keep accurate and complete records of its Accounts,
including all payments and collections thereon, and shall submit to the Administrative
Agent sales, collection, reconciliation and other reports in form reasonably satisfactory
to the Administrative Agent, on such periodic basis as the Administrative Agent may
request. The Borrower Agent shall also provide to the Administrative Agent, on or before
the 20th day of each month, a detailed aged trial balance of all Loan Party Accounts as of
the end of the preceding month, specifying each Account’s Account Debtor name and address,
amount, invoice date and due date, showing any discount, allowance, credit, authorized
return or dispute, and including such proof of delivery, copies of invoices and invoice
registers, copies of related documents, repayment histories, status reports and other
information as the Administrative Agent may reasonably request. If Accounts in an
aggregate face amount of $5,000,000 or more cease to be Eligible Receivables, the Borrower
Agent shall notify the Administrative Agent of such occurrence promptly (and in any event
within three Business Days) after any Loan Party has knowledge thereof.




          (ii) Taxes. If an Account of any Loan Party includes a charge for any Taxes,
the Administrative Agent is authorized, in its discretion, to pay the amount thereof to the
proper taxing authority for the account of such Loan Party and to charge the Borrowers
therefor; provided, however, that neither the Administrative Agent nor the
Lenders shall be liable for any Taxes that may be due from the Loan Parties or with respect
to any Collateral.



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          (iii) Account Verification. Whether or not a Default or Event of Default or a
Cash Dominion Event exists, the Administrative Agent shall have the right at any time, in
the name of the Administrative Agent, any designee of the Administrative Agent or any Loan
Party, to verify the validity, amount or any other matter relating to any Accounts of the
Loan Party by mail, telephone or otherwise. The Loan Parties shall
cooperate fully with the Administrative Agent in an effort to facilitate and promptly
conclude any such verification process.




          (iv) Maintenance of Accounts. The Loan Parties shall maintain one or more
Dominion Accounts, each pursuant to a lockbox or other arrangement acceptable to
Administrative Agent, with such banks as may be selected by applicable Loan Parties and be
acceptable to Administrative Agent. The Loan Parties shall enter into Deposit Account
Control Agreements with each bank at which a Deposit Account (other than an Excluded
Account) is maintained by which such bank shall, upon the occurrence and during the
continuation of a Cash Dominion Event or an Event of Default, immediately transfer to the
U.S. Payment Account all monies deposited to a Dominion Account constituting proceeds of
U.S. Collateral and to the Canadian Payment Account all monies deposited to a Dominion
Account constituting proceeds of Canadian Collateral. All funds deposited in each Dominion
Account shall be subject to the Administrative Agent’s Lien. The Loan Parties shall obtain
the agreement (in favor of and in form and content reasonably satisfactory to the
Administrative Agent) by each bank at which a Dominion Account is maintained to waive any
offset rights against the funds deposited into such Dominion Account, except offset rights
in respect of charges incurred in the administration of such Dominion Account. The
Administrative Agent and the Lenders shall not assume any responsibility to any Loan Party
for such lockbox arrangement or, upon the occurrence and during the continuation of a Cash
Dominion Event or Event of Default, any Dominion Account, including any claim of accord and
satisfaction or release with respect to deposits accepted by any bank thereunder.




          (v) Collection of Accounts; Proceeds of Collateral. All Payment Items
received by any Loan Party in respect of its Accounts, together with the proceeds of any
other Collateral, shall be held by such Loan Party as trustee of an express trust for the
Administrative Agent’s benefit; such Loan Party shall immediately deposit same in kind in a
Dominion Account for application to the applicable Obligations in accordance with the terms
of this Agreement and the applicable Security Agreement. The Administrative Agent retains
the right at all times that a Default or an Event of Default exists to notify Account
Debtors of any Loan Party that Accounts have been assigned to the Administrative Agent and
to collect Accounts directly in its own name and to charge to the Borrowers the collection
costs and expenses incurred by the Administrative Agent or Lenders, including reasonable
attorneys’ fees. Upon the occurrence and during the continuation of a Cash Dominion Event
or an Event of Default, all monies properly deposited in the U.S. Payment Account shall be
deemed to be voluntary prepayments of U.S. Obligations and applied in accordance with
Section 2.05(b)(vii)(A) to reduce outstanding Obligations and all monies properly
deposited in the Canadian Payment Account shall be deemed to be voluntary prepayments of
Canadian Obligations and applied in accordance with Section 2.05(b)(vii)(B) to
reduce outstanding Canadian Obligations.




          (vi) Asset Sales Proceeds Accounts. Neither the Specified U.S. Borrower nor
any of its Subsidiaries shall deposit any funds or credit any amounts into any “Asset Sales
Proceeds Account” (as defined in the Intercreditor Agreement), other than proceeds of
Noteholder Collateral.




     (b) Administration of Inventory. (i) Records and Reports of
Inventory. Each Loan Party shall keep accurate and complete records of its Inventory,
including costs and daily



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withdrawals and additions, and shall submit to the Administrative
Agent inventory and reconciliation reports in form reasonably satisfactory to the
Administrative Agent, on such periodic basis as the Administrative Agent may request. Each
Loan Party shall conduct a physical inventory at least once per calendar year (and on a
more frequent basis if requested by the Administrative Agent when an Event of Default
exists) and periodic cycle counts consistent with historical practices, and shall provide
to the Administrative Agent a report based on each such inventory and count promptly upon
completion thereof, together with such supporting information as the Administrative Agent
may request. The Administrative Agent may participate in and observe each physical count.




          (ii) Returns of Inventory. No Loan Party shall return any Inventory to a
supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such
return is in the ordinary course of business; (b) no Default, Event of Default or
Overadvance exists or would result therefrom; and (c) the Administrative Agent is promptly
notified if the aggregate value of all Inventory returned in any month exceeds $5,000,000.




          (iii) Acquisition, Sale and Maintenance. The Loan Parties shall use, store
and maintain all Inventory with reasonable care and caution, in accordance with applicable
standards of any insurance and in conformity with all Applicable Law, and shall make
current rent payments (within applicable grace periods provided for in leases) at all
locations where any Collateral is located.



          6.19 Maintenance of Cash Management System. (a) The applicable schedule to the
Perfection Certificate sets forth all Deposit Accounts maintained by the Loan Parties, including
all Dominion Accounts. On or prior to the date that is 90 days after the Closing Date, each Loan
Party shall take all actions necessary to establish the Administrative Agent’s control of and Lien
on each such Deposit Account (other than an Excluded Account). Each Loan Party shall be the sole
account holder of each Deposit Account (other than an Excluded Account) and shall not allow any
other Person (other than the Administrative Agent) to have control over or a Lien on a Deposit
Account (other than an Excluded Account) or any property deposited therein.




          (b) Within ninety (90) days after the Closing Date (or such later date as may be agreed to by
the Administrative Agent), the Loan Parties shall have delivered to the Administrative Agent
Deposit Account Control Agreements, Securities Account Control Agreements and Commodity Account
Control Agreements for all of the Deposit Accounts, Securities Accounts and Commodity Accounts,
respectively, of the Loan Parties (other than Excluded Accounts), duly executed by each applicable
Loan Party and the applicable depositary bank or securities intermediary.




          (c) Upon the occurrence and during the continuation of a Cash Dominion Event, the Loan Parties
shall cause any and all funds and financial assets held in or credited to each deposit account and
each securities account to be swept into the Payment Account on a daily basis (or at other
frequencies as agreed by the Administrative Agent).




          6.20 Collateral Audit. The Loan Parties shall cause the Required Audit to be
completed within 45 days after the Closing Date.




          6.21 Excluded Real Property. In the event that any parcel of Excluded Real Property
has not been disposed of on or before December 31, 2008, or on any earlier date that such parcel of
Excluded Real Property secures the Senior Secured Notes, deliver no later than
March 1, 2009 (as it may be extended by the Administrative Agent in its sole discretion) to
the Administrative Agent each of the Real Estate Closing Deliverables with respect to each such
parcel of Excluded Real Property.




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          6.22 Post-Closing Matters. The Loan Parties shall have taken, or shall have caused to
be taken, each action set forth on Schedule 6.22 within the time period set forth on
Schedule 6.22 for such action; provided that, the Administrative Agent shall be permitted
to grant extensions of the time periods set forth thereon in its sole discretion.




ARTICLE VII

NEGATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than any contingent indemnification obligation as to which no claim has been
asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding and
each Borrower shall not, nor shall they permit any of their Subsidiaries to, directly or
indirectly:




          7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign or file or authorize
the filing under the UCC, the PPSA, the Civil Code of Quebec or similar law of any jurisdiction a
financing statement or similar filing or registration that names the Borrowers or any of their
respective Subsidiaries as debtor, or sign any security agreement authorizing any secured party
thereunder to file such financing statement or similar filing or registration, other than the
following:





     (a) Liens pursuant to any Loan Document;




     (b) Liens securing the Senior Secured Notes, subject to the terms of the Intercreditor
Agreement;




     (c) Liens existing on the Closing Date and listed on Schedule 7.01 and any
modifications, replacements, renewals or extensions thereof; provided that (i) the Lien
does not extend to any additional property other than (A) after-acquired property that is
affixed or incorporated into the property covered by such Lien and (B) proceeds and
products thereof and (ii) the renewal, extension or refinancing of the obligations secured
or benefited by such Liens is permitted by Section 7.03;




     (d) Liens for Taxes, assessments or governmental charges which are not required to be
paid pursuant to Section 6.04;




     (e) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen,
repairmen, processors or other like Liens arising in the ordinary course of business which
secure amounts not overdue for a period of more than thirty (30) days or if more than
thirty (30) days overdue, are unfiled and no other action has been taken to enforce such
Lien or which are being contested in good faith and by appropriate proceedings diligently
conducted which proceedings have the effect of preventing the forfeiture or sale of the
property subject to such Lien, if adequate reserves with respect thereto are maintained on
the books of the applicable Person;




     (f) (i) pledges or deposits in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other social security legislation, other
than any Lien imposed by ERISA or in respect of Canadian Pension Plans and (ii) pledges and
deposits in the ordinary course of business securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of credit or
bank



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guarantees for the benefit of) insurance carriers providing property, casualty or
liability insurance to the Specified U.S. Borrower or any of its Subsidiaries;




     (g) deposits to secure the performance of bids, trade contracts, governmental
contracts and leases (other than Indebtedness for borrowed money), statutory obligations,
surety, stay, customs and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business and not in connection with Indebtedness
for money borrowed;




     (h) easements, rights-of-way, restrictions, encroachments, protrusions and other
similar encumbrances and minor title defects affecting real property which, in the
aggregate, do not in any case materially interfere with the ordinary conduct of the
business of the applicable Person;




     (i) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) and not yet required to be paid pursuant to
Section 6.04;




     (j) Liens securing Indebtedness permitted under Section 7.03(b)(vi);
provided that (i) such Liens attach concurrently with or within one hundred eighty
(180) days after the acquisition, repair, replacement or improvement (as applicable) of the
property subject to such Liens, (ii) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and the proceeds and the products
thereof and (iii) with respect to Capitalized Leases, such Liens do not at any time extend
to or cover any assets other than the assets subject to such Capitalized Leases;
provided that individual financings of equipment provided by one lender may be
cross-collateralized to other financings of equipment provided by such lender on customary
terms;




     (k) leases, licenses, subleases or sublicenses in respect of real property granted to
others in the ordinary course of business and not interfering in any material respect with
the business of the Specified U.S. Borrower or any of its Subsidiaries;




     (l) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the
ordinary course of business;




     (m) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of the Specified U.S. Borrower or any
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Specified U.S. Borrower or any Subsidiary or (iii)
relating to purchase orders and other agreements entered into with customers of the
Specified U.S. Borrower or any Subsidiary in the ordinary course of business;




     (n) Liens (i) on cash advances in favor of the seller of any property to be acquired
in an Investment permitted pursuant to Sections 7.02(h) and (n) to be
applied against the purchase price for such Investment, and (ii) consisting of an agreement
to Dispose of any property in a Disposition permitted under Section 7.05, in each
case, solely to the extent such Investment or Disposition, as the case may be, would have
been permitted on the date of the creation of such Lien;



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     (o) Liens on property of any Foreign Subsidiary (other than a Canadian Subsidiary)
securing Indebtedness of such Foreign Subsidiary to the extent permitted under Section
7.03(b)(vii);




     (p) Liens in favor of the Specified U.S. Borrower or a Subsidiary of the Specified
U.S. Borrower securing Indebtedness permitted under Section 7.03(b)(v);
provided that if such Liens are on any property of a U.S. Loan Party, such Liens
are in favor of a U.S. Loan Party and if such Liens are on any property of a Canadian Loan
Party, such Liens are in favor of a Loan Party;




     (q) Liens existing on property at the time of its acquisition or existing on the
property of any Person that becomes a Subsidiary after the date hereof; provided
that (i) such Lien was not created in contemplation of such acquisition or such Person
becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or
property (other than the proceeds or products thereof), and (iii) the Indebtedness secured
thereby is permitted under Section 7.03(b)(vi) or Section 7.03(b)(xvii)
(and is permitted to be secured);




     (r) Liens not extending to any ABL Priority Collateral arising from precautionary UCC
or PPSA financing statement (or the foreign equivalent thereof) filings regarding operating
leases entered into by U.S. Borrower or any of its Subsidiaries as lessees in the ordinary
course of business;




     (s) any interest or title of a lessor, sublessor, licensee, sublicensee, licensor or
sublicensor under any lease or license agreement in the ordinary course of business
permitted by this Agreement;




     (t) Liens not extending to any ABL Priority Collateral arising out of conditional
sale, title retention, consignment or similar arrangements for sale of goods entered into
by the Specified U.S. Borrower or any of its Subsidiaries in the ordinary course of
business permitted by this Agreement;




     (u) Liens not extending to any ABL Priority Collateral encumbering reasonable
customary initial deposits and margin deposits and similar Liens attaching to commodity
trading accounts or other brokerage accounts incurred in the ordinary course of business
and not for speculative purposes;




     (v) Permitted Encumbrances;




     (w) other Liens securing Indebtedness and other obligations outstanding in an
aggregate principal amount not to exceed $37,500,000 (none of which shall be secured by
Liens on the ABL Priority Collateral);




     (x) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 7.02; and




     (y) the Lien against the real property located at 1620 Mid-American Industrial Court,
Boonville, Missouri.



          7.02 Investments. Make or hold any Investments, except:




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     (a) Investments held by the Specified U.S. Borrower or such Subsidiary in Cash
Equivalents;




     (b) loans or advances to officers, directors and employees of the Specified U.S.
Borrower and its Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time
outstanding;




     (c) Investments (i) by the Specified U.S. Borrower or any of its Subsidiaries in any
U.S. Loan Party (including any new Subsidiary which becomes a U.S. Loan Party), (ii) by any
Canadian Loan Party (x) in any other Canadian Loan Party and (y) in any Foreign Subsidiary
that is a Subsidiary but not a Loan Party in an amount not to exceed $5,000,000 at any time
outstanding (or, if Excess Availability at the time any such Investment is made and after
giving effect thereto would be 15% or more of the Total Borrowing Base, additional amounts
but not to exceed $25,000,000 in the aggregate at anytime outstanding), (iii) by any
Subsidiary that is not a Loan Party in any other such Subsidiary, (iv) Investment by the
Specified U.S. Borrower or any Subsidiary that is a Loan Party in any Subsidiary that is
not a U.S. Loan Party in an aggregate amount not to exceed $5,000,000 at any time
outstanding or, if Excess Availability at the time any such Investment is made and after
giving effect thereto would be 15% or more of the Total Borrowing Base, additional amounts
but not to exceed $25,000,000 in the aggregate at anytime outstanding) and (v) by the
Specified U.S. Borrower or any Subsidiary in any Foreign Subsidiary consisting of (A) the
contribution of Equity Interests of any other Foreign Subsidiary held directly by the
Specified U.S. Borrower or such Subsidiary in exchange for Indebtedness, Equity Interests
or a combination thereof of the Foreign Subsidiary to which such contribution is made,
provided that if such Equity Interests are of a Canadian Loan Party, such
contribution is to a Canadian Loan Party; or (B) the exchange of Equity Interests in any
Foreign Subsidiary for Indebtedness of such Foreign Subsidiary;




     (d) Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the ordinary
course of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors;




     (e) Investments arising out of transactions expressly permitted under Sections
7.01, 7.03(b)(v) (other than subclause (C)(2) thereof), 7.05
(other than clauses (b), (d), (g), (h) and (l)
thereof) and 7.06;




     (f) Investments existing on the Closing Date and set forth on Schedule 7.02
and any modification, replacement, renewal or extension thereof; provided that the
amount of the original Investment is not increased except as otherwise permitted by this
Section 7.02;




     (g) Investments in Swap Contracts permitted under Section 7.03;




     (h) the purchase or other acquisition of all or substantially all of the property and
assets or business of, any Person or of assets constituting a business unit, a line of
business or division of such Person, or at least 80% of the Equity Interests in a Person
that, upon the consummation thereof, will be owned directly by the Specified U.S. Borrower
or one or more of its wholly owned Subsidiaries (including, without limitation, as a result
of a merger or consolidation); provided that, with respect to each purchase or
other acquisition made pursuant to this Section 7.02(h) (each, a “Permitted
Acquisition”):



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     (A) each applicable Loan Party and any such newly created or acquired
Subsidiary shall comply with the applicable requirements of Section 6.12;




     (B) the board of directors of such acquired Person or its selling equity
holders in existence at the time such purchase or acquisition is commenced shall
have approved such purchase or other acquisition;




     (C) immediately before and immediately after giving effect to any such
purchase or other acquisition, (1) no Default shall have occurred and be continuing
and (2) Excess Availability shall exceed 20% of the Total Borrowing Base (it being
agreed that unless the Administrative Agent shall otherwise agree in its sole
discretion, no Inventory or Accounts acquired in a Permitted Acquisition shall be
included in the Borrowing Base until the Administrative Agent shall have completed
a field audit and inventory appraisal in scope and with results satisfactory to it
and until the Administrative Agent shall have received duly executed Deposit
Account Control Agreements, Securities Account Control Agreements and Commodity
Account Control Agreements with respect to the bank accounts, securities accounts
and commodities accounts of the acquired business);




     (C) the Specified U.S. Borrower shall have delivered to the Administrative
Agent, on behalf of the Lenders, at least one (1) Business Day prior to the date on
which any such purchase or other acquisition is to be consummated, a certificate of
a Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the requirements set forth in this
clause (h) have been satisfied or will be satisfied on or prior to the
consummation of such purchase or other acquisition; and




     (D) except to the extent the purchase price therefor is paid by a Foreign
Subsidiary, the fair market value of all property acquired in Permitted
Acquisitions which is contributed to or owned by Subsidiaries that are not U.S.
Loan Parties shall be deemed to be an Investment permitted only to the extent made
pursuant to Section 7.02(c)(iv).




     (i) Investments that U.S. Borrower has elected to be treated as Restricted Payments
that are permitted by Section 7.06;




     (j) Investments in the ordinary course of business consisting of (i) endorsements for
collection or deposit and (ii) customary trade arrangements with customers consistent with
past practices;




     (k) Investments (including debt obligations and Equity Interests) received in
connection with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business and upon the foreclosure with respect to any
secured Investment or other transfer of title with respect to any secured Investment;




     (l) the licensing, sublicensing or contribution of IP Rights pursuant to joint
marketing arrangements with Persons other than the Specified U.S. Borrower and its
Subsidiaries in the ordinary course of business;




     (m) loans and advances to Holdings in lieu of, and not in excess of the amount of
(after giving effect to any other loans, advances or Restricted Payments in respect
thereof),



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Restricted Payments to the extent permitted to be made to Holdings in accordance
with Section 7.06;




     (n) other Investments so long as immediately before and immediately after giving
effect to any such Investment, (i) no Event of Default has occurred and is continuing, (ii)
Excess Availability shall exceed 20% of the Total Borrowing Base and (iii) the Specified
U.S. Borrower shall be in compliance with the covenant set forth in Section 7.11
(whether or not such covenant is otherwise applicable under this Agreement at such time)
and shall have delivered to the Administrative Agent a pro forma Compliance Certificate
demonstrating such compliance; and




     (o) other Investments in an aggregate amount not to exceed $5,000,000 during the term
of this Agreement.



          7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:




          (a) in the case of the Specified U.S. Borrower:





     (i) the 2011 Senior Subordinated Notes and any Permitted Refinancings thereof;




     (ii) the Senior Secured Notes in an aggregate principal amount not to exceed
$750,000,000 and any Permitted Refinancings thereof;




     (iii) Permitted Subordinated Indebtedness;



          (b) in the case of Specified U.S. Borrower and its Subsidiaries:





     (i) Indebtedness of the Loan Parties under the Loan Documents;




     (ii) Indebtedness of the Loan Parties under the Senior Secured Notes in an
aggregate principal amount not to exceed $750,000,000 and any Permitted
Refinancings thereof;




     (iii) Indebtedness outstanding on the Closing Date and listed on Schedule
7.03(b) and any modifications, refinancings, refundings, renewals or extensions
thereof; provided that (A) the amount of such Indebtedness is not increased
at the time of such modification, refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing or as otherwise permitted pursuant to this Section
7.03, and (B) the terms and conditions (including, if applicable, as to
collateral and subordination) of any such modified, extending, refunding or
refinancing Indebtedness are not materially less favorable to the Loan Parties or
the Lenders than the terms and conditions of the Indebtedness being modified,
extended, refunded or refinanced;




     (iv) Guarantees of the Specified U.S. Borrower and its Subsidiaries in respect
of Indebtedness of the Specified U.S. Borrower or such Subsidiary otherwise
permitted under this Section 7.03(b); provided that (i) if such
Guarantee is a Guarantee of Indebtedness of a U.S. Loan Party by any Subsidiary,
such Subsidiary is a U.S. Loan Party or such Subsidiary shall have also provided a
Guarantee of the Obligations substantially on the terms set forth in the U.S.
Guaranty, (ii) if such Guarantee is a



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Guarantee of Indebtedness of a Canadian Loan
Party by any Subsidiary, such Subsidiary is a Loan Party or such Subsidiary shall
have also provided a Guarantee of the Canadian Obligations substantially on the
terms set forth in the Canadian Guarantee, (iii) if such Guarantee is of
Indebtedness of a Subsidiary that is not a U.S. Loan Party, such Guarantee would be
permitted as an Investment under Section 7.03 and (iv) if such Indebtedness
is subordinated to the Obligations, such Guarantee shall be also be subordinated to
the Obligations on terms no less favorable to the Lenders;




     (v) Indebtedness of (A) any U.S. Loan Party owing to any other U.S. Loan
Party, (B) any Canadian Loan Party owing to any other Loan Party, (C) any
Subsidiary that is not a Loan Party owing to (1) any other Subsidiary that is not a
Loan Party or (2) Holdings or a Loan Party in respect of an Investment permitted
under Section 7.02(c) or (n), and (D) any Loan Party owing to any
Subsidiary which is not a Loan Party; provided that all such Indebtedness
of any Loan Party in this clause (v)(D) must be expressly subordinated to
the Obligations or the Canadian Obligations on the terms set forth in the
Guaranties, as applicable and be represented by the Intercompany Note;




     (vi) Attributable Indebtedness and purchase money obligations (including
obligations in respect of mortgage, industrial revenue bond, industrial development
bond and similar financings) to finance the purchase, repair or improvement of
fixed or capital assets within the limitations set forth in Section 7.01(j)
and any Permitted Refinancing thereof; provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $30,000,000;




     (vii) Indebtedness of Foreign Subsidiaries (other than Canadian Subsidiaries)
in an aggregate principal amount at any time outstanding for all such Persons taken
together not exceeding $30,000,000;




     (viii) Indebtedness in respect of Swap Contracts designed to hedge against
foreign exchange rates or commodities pricing risks incurred in the ordinary course
of business and not for speculative purposes;




     (ix) unsecured Indebtedness consisting of promissory notes issued by any Loan
Party to current or former officers, directors and employees, their respective
estates, spouses or former spouses to finance the purchase or redemption of Equity
Interests of the Specified U.S. Borrower or Investors LLC permitted by Section
7.06;




     (x) unsecured Indebtedness incurred by the Specified U.S. Borrower or its
Subsidiaries in a Permitted Acquisition or Disposition under agreements providing
for customary adjustments of the purchase price;




     (xi) Cash Management Obligations and other Indebtedness in respect of
endorsements for collection or deposit, netting services, overdraft protections and
similar arrangements in each case in connection with deposit accounts
provided that such Indebtedness is extinguished within ten Business Days
after its incurrence;




     (xii) unsecured Indebtedness in an aggregate principal amount not to exceed
$75,000,000 at any time outstanding;




     (xiii) Indebtedness evidenced by the 2014 Senior Subordinated Notes and any
Permitted Refinancing thereof;




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     (xiv) Indebtedness consisting of (A) the financing of insurance premiums, (B)
take-or-pay obligations contained in supply arrangements and (C) customary
indemnification obligations, in each case, incurred in the ordinary course of
business and not in connection with debt for money borrowed;




     (xv) Indebtedness incurred by the Specified U.S. Borrower or any of its
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business in respect of workers compensation
claims, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation claims in the ordinary
course of business; provided that upon the drawing of such letters of credit
or the incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or incurrence;




     (xvi) obligations in respect of performance and surety bonds and performance
and completion guarantees provided by the Specified U.S. Borrower or any of its
Subsidiaries or obligations in respect of letters of credit related thereto, in each
case in the ordinary course of business consistent with past practice and not in
connection with debt for money borrowed; and




     (xvii) (A) Indebtedness of the Specified U.S. Borrower or a Subsidiary assumed
in connection with any Permitted Acquisition (and not created in contemplation
thereof) not to exceed $100,000,000 in the aggregate outstanding at any time (of
which (x) no more than $30,000,000 (taken in the aggregate with Indebtedness under
clause (B) below that matures within such period) may have a maturity date or any
mandatory principal payments prior to the date that is 181 days after the Maturity
Date and (y) no more than $20,000,000 may be secured (and Indebtedness pursuant to
this clause (y) shall not be secured by any ABL Collateral or any other property
besides a single asset or group of related assets specifically identified in the
documentation for such Indebtedness) (“Permitted Acquired Debt”) and (B)
Indebtedness of the U.S. Borrower owed to the seller of any property acquired in a
Permitted Acquisition on an unsecured subordinated basis (on terms no less favorable
to the Lenders than the terms of the 2014 Senior Subordinated Notes) and of which no
more than $30,000,000 (taken in the aggregate with Indebtedness under clause (A)
above that matures within such period) shall have any maturity or mandatory
principal payments until at least 181 days after the Maturity Date (“Permitted
Seller Notes”).



          7.04 Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of transactions) all
or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:




     (a) any Subsidiary may merge with (i) the Specified U.S. Borrower (including a merger,
the purpose of which is to reorganize the Specified U.S. Borrower into a new jurisdiction
which is a State of the United States of America), provided that the Specified U.S.
Borrower shall be the continuing or surviving Person or the surviving Person shall expressly
assume the obligations of the Specified U.S. Borrower pursuant to documents reasonably
acceptable to the Administrative Agent, or (ii) any one or more other Subsidiaries,
provided that when any U.S. Subsidiary Guarantor is merging with another Subsidiary
(which is not a U.S. Subsidiary Guarantor), the U.S. Subsidiary Guarantor shall be the
continuing or surviving Person;



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     (b) any Canadian Subsidiary may merge or amalgamate with (i) the Canadian Borrower
(including a merger or amalgamation, the purpose of which is to reorganize the Canadian
Borrower into a new jurisdiction which is a province or territory of Canada),
provided that the Canadian Borrower shall be the continuing or surviving Person or
the surviving Person shall expressly assume the obligations of the Canadian Borrower
pursuant to documents reasonably acceptable to the Administrative Agent, or (ii) any one or
more other Subsidiaries, provided that when any Canadian Subsidiary Guarantor is
merging or amalgamating with another Subsidiary, a Guarantor shall be the continuing or
surviving Person;




     (c) (i) any Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary dissolution, liquidation or otherwise) to the Specified U.S. Borrower or to
another Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must be a Loan Party and if the transferee is not the
Specified U.S. Borrower or a U.S. Subsidiary Guarantor, such transfer must be in the
ordinary course of business consistent with past practice, and (ii) any Subsidiary that is
not a U.S. Subsidiary Guarantor may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Canadian Borrower or another Subsidiary;
provided that if the transferor in such transaction is a Canadian Loan Party, then
the transferee must be a Loan Party;




     (d) any Subsidiary may merge or amalgamate with or Dispose of all or substantially all
of its assets to any other Person in order to effect an Investment permitted pursuant to
Section 7.02; provided that if the continuing or surviving Person shall be a
Subsidiary, such Subsidiary and each of its Subsidiaries shall have complied with the
applicable requirements of Section 6.12; and




     (e) a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the
purpose of which is to effect a Disposition permitted pursuant to Section 7.05
(other than clause (e) thereof).



          7.05 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:




     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business and Dispositions of property no longer used in
the conduct of the business of the Specified U.S. Borrower and its Subsidiaries;




     (b) Dispositions of Inventory in the ordinary course of business;




     (c) Dispositions of property to the extent that (i) such property is exchanged for
credit against the purchase price of similar replacement property or (ii) the proceeds of
such Disposition are promptly applied to the purchase price of such replacement property;




     (d) Dispositions of property by any Subsidiary to the Specified U.S. Borrower or to a
Subsidiary; provided that (A) if the transferor of such property is a U.S. Loan Party either
(i) the transferee is a U.S. Loan Party or (ii) to the extent such transaction constitutes
an Investment, such transaction is permitted under Section 7.02 and (B) if the
transferor of such property is a Canadian Loan Party either (i) the transferee is a Loan
Party or (ii) to the extent such transaction constitutes an Investment, such transaction is
permitted under Section 7.02;




     (e) Dispositions permitted by Sections 7.04 and 7.06 (solely with
respect to reissuances of Equity Interests of treasury stock of the Specified U.S.
Borrower);



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     (f) Dispositions by the Specified U.S. Borrower and its Subsidiaries of property
pursuant to sale-leaseback transactions; provided that (i) the fair market value of
all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date and
(ii) the purchase price for such property shall be paid to the Specified U.S. Borrower or
such Subsidiary for not less than 75% cash consideration;




     (g) Dispositions of Cash Equivalents;




     (h) Dispositions of (i) defaulted Accounts of financially-troubled debtors in
connection with the collection or compromise thereof and (ii) with 10 days’ prior notice to
the Administrative Agent, other Accounts as to which the applicable Loan Party has
reasonable concerns as to credit quality;




     (i) licensing or sublicensing of IP Rights in the ordinary course of business on
customary terms;




     (j) leases, subleases, licenses or sublicenses of property in the ordinary course of
business and which do not materially interfere with the business of the Specified U.S.
Borrower and its Subsidiaries;




     (k) transfers of property subject to Casualty Events upon receipt of the Net Cash
Proceeds of such Casualty Event;




     (l) Dispositions by the Specified U.S. Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time of such
Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the
aggregate fair market value of all property Disposed of in reliance on this clause (l) shall
not exceed $75,000,000 since the Closing Date (excluding any property Disposed of in a
Disposition or series of related Dispositions involving property with an aggregate fair
market value of less than $5,000,000), and (iii) the purchase price for such property shall
be paid to the Specified U.S. Borrower or such Subsidiary for not less than 75% cash
consideration; and




     (m) Dispositions of assets set forth on Schedule 7.05;




provided, however, that any Disposition of any property pursuant to this
Section 7.05 (except pursuant to Sections 7.05(d)(A)(i), (d)(B)(i),
(e), (h) and (m)), shall be for no less than the fair market value
of such property at the time of such Disposition. To the extent any Collateral is Disposed
of as expressly permitted by this Section 7.05 (other than to a Loan Party), such
Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the
Administrative Agent shall be authorized to take any actions deemed appropriate in order to
effect the foregoing.



          7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, except:




     (a) each Subsidiary may make Restricted Payments to the Specified U.S. Borrower and to
Subsidiaries (and, in the case of a Payment by a non-wholly-owned Subsidiary, to the
Specified U.S. Borrower and any Subsidiary and to each other owner of Equity Interests of
such Subsidiary based on their relative ownership interests);



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     (b) the Specified U.S. Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Equity Interests (other than
Disqualified Equity Interests) of such Person;




     (c) [Reserved];




     (d) to the extent constituting Restricted Payments, the Specified U.S. Borrower and its
Subsidiaries may enter into transactions expressly permitted by Section 7.04,
7.08, or 7.14;




     (e) the Specified U.S. Borrower and any Subsidiary of the Specified U.S. Borrower may
make Restricted Payments to Holdings:




     (i) the proceeds of which will be used to pay the tax liability for the
relevant jurisdiction in respect of consolidated, combined, unitary or affiliated
returns for the relevant jurisdiction of Holdings attributable to the Specified U.S.
Borrower and its Subsidiaries determined as if the U.S. Specified Borrower and its
Subsidiaries filed separately;




     (ii) the proceeds of which shall be used by Holdings to pay its (or to make a
Restricted Payment to any direct or indirect parent company of the Specified U.S.
Borrower to enable it to pay) operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses (including, without
limitation, administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary course of
business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus
any reasonable and customary indemnification claims made by directors or officers of
Holdings or any direct or indirect parent company of the Specified U.S. Borrower
attributable to the ownership or operations of the Specified U.S. Borrower and its
Subsidiaries;




     (iii) the proceeds of which shall be used by Holdings to pay (or to make a
Restricted Payment to any direct or indirect parent company of the Specified U.S.
Borrower to enable it to pay to enable it to pay) its franchise taxes;




     (iv) the proceeds of which will be used to repurchase the Equity Interests of
Holdings from, or to make a Restricted Payment to any direct or indirect parent
company of the Specified U.S. Borrower to enable it to repurchase its Equity
Interests from, directors, employees or members of management of Holdings or any
direct or indirect parent company of the Specified U.S. Borrower, the Specified U.S.
Borrower or any Subsidiary (or their estate, family members, spouse and/or former
spouse), in an aggregate amount not in excess of $7,500,000 in any calendar year
plus the proceeds of any key-man life insurance maintained by Holdings, the
Specified U.S. Borrower or any of its Subsidiaries; provided that the
Specified U.S. Borrower may carry-over and make in any subsequent calendar year or
years, in addition to the amount for such calendar year, the amount not utilized in
the prior calendar year or years up to a maximum of $15,000,000;




     (v) to finance any Investment permitted to be made pursuant to Section
7.02; provided that (A) such Restricted Payment shall be made concurrently with
the closing of such Investment and (B) Holdings shall, immediately following the
closing thereof, cause (1) all property acquired (whether assets or Equity
Interests) to be contributed to the Specified U.S. Borrower or its Subsidiaries or
(2) the merger (to the extent permitted in



124









 







Section 7.04) of the Person formed or acquired into the Specified U.S.
Borrower or its Subsidiaries in order to consummate such Permitted Acquisition; or




     (vi) the proceeds of which shall be used by Holdings or any direct or indirect
parent company of the Specified U.S. Borrower to pay fees and expenses (other than
to Affiliates) certified to the Administrative Agent by an Officer of the Specified
U.S. Borrower and related to any unsuccessful equity or debt offering.




     (f) in addition to the foregoing Restricted Payments, the Specified U.S. Borrower may
make additional Restricted Payments to Holdings the proceeds of which may be utilized by
Holdings to make additional Restricted Payments so long as before and after giving effect
thereto (i) no Event of Default has occurred and is continuing, (ii) Excess Availability
shall be more than 25% of the Total Borrowing Base and (iii) the Specified U.S. Borrower
shall be in compliance with the covenant set forth in Section 7.11 (whether or not
such covenant is otherwise applicable under this Agreement at such time) and shall have
delivered to the Administrative Agent a pro forma Compliance Certificate demonstrating such
compliance; provided, that if the proceeds of such Restricted Payment are to be and
are promptly applied to make a payment of the type described in Section 7.14, the
Restricted Payment to Holdings under this clause (f) to allow it to make those payments
shall be subject only to the criteria for the applicable type of payment set forth in
Section 7.14;




     (g) repurchases of Equity Interests of the Specified U.S. Borrower deemed to occur upon
the non-cash exercise of stock options and warrants; and




     (h) so long as no Default shall have occurred and be continuing or would result
therefrom, the Specified U.S. Borrower may make Restricted Payments with the Net Cash
Proceeds from any Permitted Equity Issuance (to the extent constituting Specified Issuance
Proceeds) received since the Closing Date or the net cash proceeds up to $25,000,000 of
Permitted Subordinated Debt received since the Closing Date, in each case, to the extent Not
Otherwise Applied and to the extent such proceeds were received within 90 days prior to the
date of such Restricted Payment and held in segregated account pending application pursuant
to this clause (h).



          7.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Specified U.S. Borrower and
its Subsidiaries on the date hereof or any business reasonably related or ancillary thereto.



          7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Specified U.S. Borrower, whether or not in the ordinary course of business, other
than (a) transactions (i) between or among U.S. Loan Parties, (ii) between or among Canadian Loan
Parties, (iii) between or among Canadian Loan Parties and U.S. Loan Parties on terms substantially
as favorable to the U.S. Loan Parties as would be obtainable by the U.S. Loan Parties at the time
in a comparable arm’s-length transaction with a Person other than an Affiliate, (iv) between or
among Canadian Loan Parties and Subsidiaries that are not Loan Parties on terms substantially as
favorable to the Canadian Loan Parties as would be obtainable by the Canadian Loan Parties at the
time in a comparable arm’s-length transaction with a Person other than an Affiliate, (v) between or
among Subsidiaries that are not Loan Parties and (vi) between or among the Loan Parties, the
Subsidiaries and/or any joint venture in which any of them owns an interest, in each case, in the
ordinary course of business, (b) on fair and reasonable terms substantially as favorable to the
applicable Borrower or such Subsidiary as would be obtainable by the applicable Borrower or such
Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an
Affiliate, (c) the payment of fees, expenses and other payments made in connection



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with the consummation of the Transactions, (d) so long as no Event of Default shall have occurred and
be continuing under Section 8.01(f), the payment of fees to the Sponsor pursuant to the
Sponsor Management Agreement, (e) equity issuances by the Specified U.S. Borrower permitted under
Section 7.06, (f) loans and other transactions by the Specified U.S. Borrower and its
Subsidiaries to the extent permitted under Section 7.06 or clauses (b),
(c), (e) and (m) of Section 7.02, (g) customary fees may be paid to
any directors of the Specified U.S. Borrower and reimbursement of reasonable out-of-pocket costs of
the directors of the Specified U.S. Borrower, (h) the Specified U.S. Borrower and its Subsidiaries
may enter into employment and severance arrangements with officers and employees in the ordinary
course of business, (i) the payment of customary fees and reasonable out-of-pocket cost to, and
indemnities provided on behalf of, directors, officers, employees and consultants of the Specified
U.S. Borrower and the Subsidiaries in the ordinary course of business to the extent attributable to
the ownership or operation of the Specified U.S. Borrower and its Subsidiaries, as determined in
good faith by the board of directors of the Specified U.S. Borrower or senior management thereof,
(j) transactions pursuant to permitted agreements in existence on the Closing Date and set forth on
Schedule 7.08 or any amendment thereto to the extent such an amendment is not adverse to
the Lenders in any material respect, (k) dividends, redemptions and repurchases permitted under
Section 7.06, and (l) payments by the Specified U.S. Borrower and any Subsidiaries to the
Sponsor made for any customary financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities, including in connection with acquisitions or
divestitures, which payments are (A) pursuant to the Sponsor Management Agreement as in effect on
the Closing Date and (B) approved by the majority of the members of the board of directors or a
majority of the disinterested members of the board of directors of the Specified U.S. Borrower, in
each case in good faith.



          7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation
(other than this Agreement or any other Loan Document) that limits the ability (a) of any
Subsidiary of the Specified U.S. Borrower to make Restricted Payments to the Specified U.S.
Borrower or any Guarantor or to otherwise transfer property to or invest in any Borrower or any
Guarantor, except for any agreement in effect (i) (x) on the date hereof and (y) to the extent
Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing
Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or
refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand
the scope of such Contractual Obligation, (ii) at the time any Person becomes a Subsidiary, so long
as such agreement was not entered into solely in contemplation of such Person becoming a
Subsidiary, (iii) representing Indebtedness of a Subsidiary which is not a Loan Party which is
permitted by Section 7.03, or (iv) in connection with any Disposition permitted by
Section 7.05 relating solely to the assets to be disposed of, and (b) of the Specified U.S.
Borrower or any Loan Party to create, incur, assume or suffer to exist Liens on property of such
Person for the benefit of the Lenders with respect to the Revolving Credit Facility and the
Obligations or under the Loan Documents except for (i) negative pledges and restrictions on Liens
in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the
extent any negative pledge relates to the property subject to a Lien permitted by Section
7.01 or (ii) customary restrictions on leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto;
provided, however, that clauses (a) and (b) shall not prohibit Contractual Obligations that (i) are
customary provisions in joint venture agreements and other similar agreements applicable to joint
ventures permitted under Section 7.02 and applicable solely to such joint venture entered
into in the ordinary course of business, or (ii) apply only to the property or assets securing
Indebtedness permitted to be secured by such property or assets by Section 7.01 and
Section 7.03, (iii) are customary provisions restricting subletting or assignment of any
lease governing a leasehold interest, (iv) are customary provisions restricting assignment of any
agreement entered into in the ordinary course of business and (v) are restrictions on cash or other
deposits imposed by customers under contracts entered into in the ordinary course of business.



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          7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin stock or to refund
Indebtedness originally incurred for such purpose.



          7.11 Financial Covenants. Consolidated Fixed Charge Coverage Ratio. At any time when
a Covenant Trigger Event shall have occurred and be continuing, permit the Consolidated Fixed
Charge Coverage Ratio as of the end of the most recently completed Measurement Period of the
Specified U.S. Borrower for which financial statements have been delivered by the Specified U.S.
Borrower pursuant to Section 6.01 and for each Measurement Period thereafter until such
Covenant Trigger Event shall cease to be continuing, to be less than 1.1:1.0.



          7.12 Amendments of Organization Documents. Amend any of its Organization Documents or
the Sponsor Management Agreement in a manner materially adverse to the Administrative Agent or the
Lenders.



          7.13 Accounting Changes. Make any change in the periods covered by the Specified U.S.
Borrower’s fiscal year.



          7.14 Prepayments, Etc. of Indebtedness. (a) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner any of the Senior Secured
Notes, the 2014 Senior Subordinated Notes, the 2011 Senior Subordinated Notes, the Existing NTK
Indebtedness, Permitted Seller Notes, Permitted Acquired Debt and any Permitted Subordinated
Indebtedness (collectively, “Junior Financing”) or make any payment in violation of any
subordination terms of any Junior Financing Documentation, or make any cash payment (including
without limitation a cash interest payment) in respect of the Existing NTK Indebtedness, except so
long as no Default shall have occurred and is continuing or would result therefrom (i) the
prepayment, redemption, purchase or defeasance of any such Junior Financing with the Net Cash
Proceeds of any Specified Issuance Proceeds Not Otherwise Applied to the extent that such proceeds
were received within 180 days prior to the date of such prepayment, redemption, purchase or
defeasance and held in a segregated account pending application pursuant to this Section
7.14, (ii) the conversion of any Junior Financing to Equity Interests (other than Disqualified
Equity Interests), (iii) cash interest payments on and scheduled mandatory payments of applicable
high yield discount obligation (“AHYDO”) by Holdings or NTK on Junior Financing of Holdings
or NTK on the date that is not prior to the first scheduled interest payment date thereunder after
the fifth anniversary of the issuance date, so long as immediately before and immediately after
giving effect thereto (A) no Default shall have occurred and be continuing or would result
therefrom and (B) Excess Availability shall be at least 20% of the Borrowing Base, (iv) the
prepayment, redemption, purchase or defeasance of any such Junior Financing, and the payment of
AHYDO prior to the first scheduled interest payment date thereunder after the fifth anniversary of
the issuance date, so long as immediately before and immediately after giving effect thereto (A) no
Default shall have occurred and be continuing or would result therefrom, (B) Excess Availability
shall be at least 20% of the Total Borrowing Base and (C) the Specified U.S. Borrower would be in
pro forma compliance with a Consolidated Fixed Charge Coverage Ratio of 1.0:1.0 (whether or not the
covenant in Section 7.11 is applicable at such time), provided that in each case such
payment is also permitted under the Senior Secured Notes Indenture or (b) amend, modify or change
in any manner materially adverse to the interests of the Administrative Agent or the Lenders any
term or condition of any Junior Financing Documentation.



          7.15 Amendment, Etc. of Related Documents and Indebtedness. Amend, modify or
supplement the Acquisition Agreement (as defined in the Existing Credit Agreement), or waive or



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otherwise consent to any change or departure from any of the terms or conditions of the
Acquisition Agreement, in any manner materially adverse to the Administrative Agent or the Lenders.



          7.16 Equity Interests of the Specified U.S. Borrower and Subsidiaries. (a) (i)
Permit the Specified U.S. Borrower or any of its Subsidiaries to own directly or indirectly less
than 100% of the Equity Interests of any of the Domestic Subsidiaries except as a result of or in
connection with a dissolution, merger, consolidation or Disposition of a Subsidiary permitted by
Section 7.04 or 7.05 or an Investment in any Person permitted under Section
7.02; or




     (b) Permit the Specified U.S. Borrower or any of its Subsidiaries to own directly or
indirectly less than 80% of the Equity Interests of any of the Foreign Subsidiaries which
are Subsidiaries except (A) to qualify directors where required by applicable Law or to
satisfy other requirements of applicable Law with respect to the ownership of Equity
Interests of Foreign Subsidiaries or (B) as a result of or in connection with a dissolution,
merger, amalgamation, consolidation or disposition of a Subsidiary permitted by Section
7.04 and 7.05 or an Investment in any Person permitted under Section
7.02; or




     (c) Create, incur, assume or suffer to exist any Lien on any Equity Interests of any
Borrower (other than Liens pursuant to the Loan Documents and non-consensual Liens arising
solely by operation of law and customary restrictions in joint venture agreements).



          7.17 [Reserved].



          7.18 Designation of Senior Debt. Designate any other Indebtedness of the Specified
U.S. Borrower or any of its Subsidiaries as “Designated Senior Debt” (or any comparable term)
under, and as defined in, the Senior Subordinated Notes Indenture or any other applicable Junior
Financing Documentation.



ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




          8.01 Events of Default. Any of the following shall constitute an Event of Default:




     (a) Non-Payment. Any Borrower or any other Loan Party fails to (i) pay when
and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation
or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within
three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or (iii) pay within seven days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or




     (b) Specific Covenants. (i) Any Borrower fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.03, 6.05,
6.11, 6.18(a)(iv), (v) or (vi), 6.19, 6.20,
6.22 (with respect to local counsel opinions only) or Article VII, (ii) any
of the Guarantors fails to perform or observe any term, covenant or agreement contained in
Section 7 of the Guaranties or Section 3.7 of the respective Mortgages to
which it is a party; or




     (c) Other Defaults. (i) Any Loan Party fails to perform or observe any term,
covenant or agreement contained in Section 6.01(f) and 6.10 on its part to
be performed or observed and such failure continues for two days; (ii) any Loan Party fails
to perform or observe



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any term, covenant or agreement contained in any of Sections 6.01(a),
(b), (c), (d) or (e), 6.18 (other than Sections
6.18(a)(iv), (v), (vi) or (b)(ii)) on its part to be performed
or observed and such failure continues for five days; (iii) any Loan Party fails to perform
or observe any term, covenant or agreement contained in Section 6.07 on its part to
be performed or observed and such failure continues for 10 days; or (iv) any Loan Party
fails to perform or observe any other covenant or agreement (not specified in Section
8.01(a) or (b), (c)(i), (c)(ii) or (c)(iii) above)
contained in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after notice thereof by the Administrative Agent to the Specified U.S.
Borrower; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or




     (e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to
make any payment (after giving effect to any applicable grace periods) when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined
in such Swap Contract) resulting from (A) any event of default under such Swap Contract as
to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such
Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a
result thereof is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, interim receiver, monitor, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, interim receiver, monitor, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60 calendar days;
or any proceeding under any Debtor Relief Law relating to any such Person or to all or any
material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or



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     (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary
thereof becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 45 days after its issue or levy;
or




     (h) Judgments. There is entered against any Loan Party or any Subsidiary
thereof (i) one or more final judgments or orders for the payment of money in an aggregate
amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent
not covered by independent third-party insurance as to which the insurer is rated at least
“A” by A.M. Best Company, has been notified of the potential claim and does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of 45 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan,
Multiemployer Plan or a Canadian Pension Plan which has resulted or could reasonably be
expected to result in liability of the Borrowers under Title IV of ERISA to the Pension
Plan, Multiemployer Plan, Canadian Pension Plan or the PBGC or other applicable Governmental
Authority in an aggregate amount in excess of the Threshold Amount, (ii) any Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount or (iii)
any Canadian Loan Party fails to make a required contribution in respect of a Canadian
Pension Plan and such failure gives rise to a Lien that is not permitted under Section
7.01; or




     (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner the validity
or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any provision of any Loan Document, or
purports to revoke, terminate or rescind any provision of any Loan Document; or




     (k) Change of Control. There occurs any Change of Control; or




     (l) Collateral Documents. Any Collateral Document after delivery thereof
pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant
to the terms thereof) cease to create a valid and perfected first priority Lien (subject to
Liens permitted by Section 7.01) on the Collateral purported to be covered thereby;
or




     (m) Subordination. (i) The subordination provisions of the Subordinated Notes
Documents or the documents evidencing or governing any other subordinated Indebtedness (the
“Subordination Provisions”) shall, in whole or in part, terminate, cease to be
effective or cease to be legally valid, binding and enforceable against any holder of the
applicable subordinated Indebtedness; or (ii) any Borrower or any other Loan Party shall,
directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions
exist for the benefit of the Administrative Agent, the Lenders and the L/C Issuers or (C)
that all payments of principal of or



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premium and interest on the applicable subordinated Indebtedness, or realized from the
liquidation of any property of any Loan Party, shall be subject to any of the Subordination
Provisions.



          8.02 Remedies upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by each Borrower;




     (c) require that the Borrowers Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and
remedies available to it, the Lenders and the L/C Issuers under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Specified U.S. Borrower under any Debtor Relief Laws, the
obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




          8.03 Application of Funds. After the occurrence and during the continuance of an
Event of Default, at the election of the Administrative Agent or the Required Lenders (or after the
Loans have become immediately due and payable and the L/C Obligations have been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the following order:



          (a) With respect to amounts received from or on account of any U.S. Loan Party, or in respect
of any U.S. Collateral,




     First, to payment of that portion of the U.S. Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the U.S. Obligations constituting fees,
indemnities and other amounts (other than principal, interest and U.S. Letter of Credit
Fees) payable to the U.S. Lenders and the U.S. L/C Issuers (including fees, charges and
disbursements of counsel to the respective U.S. Lenders and the U.S. L/C Issuers arising
under the Loan Documents and amounts payable under Article III (in each case, other
than fees, indemnities and other amounts, and amounts then payable under Article III arising
under Secured Cash Management Agreements



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and Secured Hedge Agreements), ratably among them in proportion to the respective
amounts described in this clause Second payable to them;




     Third, to payment of that portion of the U.S. Obligations constituting accrued
and unpaid U.S. Letter of Credit Fees and interest on the U.S. Loans, U.S. L/C Borrowings
and other U.S. Obligations arising under the Loan Documents, ratably among the U.S. Lenders
and the U.S. L/C Issuers in proportion to the respective amounts described in this clause
Third payable to them;




     Fourth, to payment of that portion of the U.S. Obligations constituting unpaid
principal of the U.S. Loans and U.S. L/C Borrowings, ratably among the U.S. Lenders and the
U.S. L/C Issuers in proportion to the respective amounts described in this clause
Fourth held by them;




     Fifth, to the Administrative Agent for the account of the U.S. L/C Issuers, to
Cash Collateralize that portion of U.S. L/C Obligations comprising the aggregate undrawn
amount of U.S. Letters of Credit;




     Sixth, to the Canadian Obligations in the order set forth in Section
8.03(b); and




     Seventh, to payment of that portion of the U.S. Obligations then owing under
U.S. Secured Cash Management Agreements, ratably among the U.S. Cash Management Banks;




     Eighth, to payment of that portion of the U.S. Obligations then owing under
U.S. Secured Hedge Agreements, ratably among the U.S. Hedge Banks;




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrowers or as otherwise required by Law.



          (b) With respect to amounts received from or on account of any Canadian Loan Party or in
respect of any Canadian Collateral, or, after all of the U.S. Obligations set forth in clauses
first through fifth above have been indefeasibly paid in full in accordance with
Section 8.03(a), from or on account of any U.S. Loan Party, or in respect of any U.S.
Collateral,




     First, to payment of that portion of the Canadian Obligations constituting
fees, indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Canadian Obligations constituting
fees, indemnities and other amounts (other than principal, interest and Canadian Letter of
Credit Fees) payable to the Canadian Lenders and the Canadian L/C Issuers (including fees,
charges and disbursements of counsel to the respective Canadian Lenders and the Canadian L/C
Issuers arising under the Loan Documents and amounts payable under Article III (in
each case, other than fees, indemnities and other amounts, and amounts then payable under
Article III arising under Secured Cash Management Agreements and Secured Hedge Agreements),
ratably among them in proportion to the respective amounts described in this clause
Second payable to them;




     Third, to payment of that portion of the Canadian Obligations constituting
accrued and unpaid Canadian Letter of Credit Fees and interest on the Canadian Loans,
Canadian L/C Borrowings and other Canadian Obligations arising under the Loan Documents,
ratably among the Canadian Lenders and the Canadian L/C Issuers in proportion to the
respective amounts described in this clause Third payable to them;



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     Fourth, to payment of that portion of the Canadian Obligations constituting
unpaid principal of the Canadian Loans and Canadian L/C Borrowings, ratably among the
Canadian Lenders and the Canadian L/C Issuers in proportion to the respective amounts
described in this clause Fourth held by them;




     Fifth, to the Administrative Agent for the account of the Canadian L/C Issuers,
to Cash Collateralize that portion of Canadian L/C Obligations comprising the aggregate
undrawn amount of Canadian Letters of Credit; and




     Sixth, to payment of that portion of the Canadian Obligations then owing under
Canadian Secured Cash Management Agreements, ratably among the Canadian Cash Management
Banks;




     Seventh, to payment of that portion of the Canadian Obligations then owing
under Canadian Secured Hedge Agreements, ratably among the Canadian Hedge Banks;




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrowers or as otherwise required by Law.


Subject to Section 2.03(b), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to Section 8.03(a), clause Fifth above, and
Section 8.03(b), clause Fifth above, shall be applied to satisfy drawings under
such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after
all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.



Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof, together with such supporting
documentation as the Administrative Agent may reasonably request, from the applicable Cash
Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a
party to this Agreement that has given the notice contemplated by the preceding sentence shall, by
such notice, be deemed to have acknowledged and accepted the appointment of the Administrative
Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a
“Lender” party hereto.




          8.04 Collection Allocation Mechanism. (a) On the CAM Exchange Date, (i) each U.S.
Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make
payment therefor to the Administrative Agent in accordance with Section 2.04(A)(c)(ii))
participations in the U.S. Swing Line Loans in an amount equal to such U.S. Revolving Lender’s
Applicable Percentage of each U.S. Swing Line Loan outstanding on such date, (ii) each U.S.
Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make
payment therefor to the Administrative Agent in accordance with Section 2.03)
participations in the Outstanding Amount of U.S. L/C Obligations with respect to each U.S. Letter
of Credit in an amount equal to such U.S. Revolving Credit Lender’s Applicable Percentage of the
aggregate amount available to be drawn under such U.S. Letter of Credit, (iii) each Canadian
Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make
payment therefor to the Administrative Agent in accordance with Section 2.04(B)(c)(ii))
participations in the Canadian Swing Line Loans in an amount equal to such Canadian Lender’s
Applicable Percentage of each Canadian Swing Line Loan outstanding on such date, (iv) each Canadian
Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make
payment therefor to the Administrative Agent in accordance with Section 2.03)
participations in the Outstanding Amount of Canadian L/C Obligations with respect to each Canadian
Letter of Credit in an amount equal to such
Canadian Revolving Credit Lender’s Applicable Percentage of the aggregate amount available to
be drawn under such Canadian Letter of Credit, (v) simultaneously



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with the automatic conversions
pursuant to clause (vi) below, the Lenders shall automatically and without further act (and without
regard to the provisions of Section 11.04) be deemed to have exchanged interests in the
Loans (other than the Swing Line Loans) and participations in the Swing Line Loans and Letters of
Credit, such that in lieu of the interest of each Lender in each Loan, and L/C Obligations in which
it shall participate as of such date (including such Lender’s interest in the Obligations,
Guaranties and Collateral of each Loan Party in respect of each such Loan and L/C Obligations),
such Lender shall hold an interest in every one of the Loans (other than the Swing Line Loans) and
a participation in every one of the Swing Line Loans and all of the L/C Obligations (including the
Obligations, Guaranties and Collateral of each Loan Party in respect of each such Loan), whether or
not such Lender shall previously have participated therein, equal to such Lender’s CAM Percentage
thereof and (vi) simultaneously with the deemed exchange of interests pursuant to clause (v) above,
the interest in the Loans denominated in Canadian Dollars to be received in such deemed exchange
shall be converted into Obligations denominated in Dollars and on and after such date all amounts
accruing and owed to Lenders in respect of such Obligations shall accrue and be payable in Dollars
at the rates otherwise applicable hereunder. Each Lender and each Loan Party hereby consents and
agrees to the CAM Exchange, and each Lender agrees that the CAM Exchange shall be binding upon its
successors and assigns and any person that acquires a participation in its interests in any Loan or
any participation in any Swing Line Loan or Letter of Credit. Each Loan Party agrees from time to
time to execute and deliver to the Administrative Agent all such promissory notes and other
instruments and documents as the Administrative Agent shall reasonably request to evidence and
confirm the respective interests of the Lenders after giving effect to the CAM Exchange, and each
Lender agrees to surrender any promissory notes originally received by it in connection with its
Loans hereunder to the Administrative Agent against delivery of any promissory notes evidencing its
interests in the Loans so executed and delivered; provided, however, that the
failure of any Loan Party to execute or deliver or of any Lender to accept any such promissory
note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange:



          (b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by Administrative Agent pursuant to any Loan Document in respect of any of the
Obligations, and each distribution made by the Administrative Agent in respect of the Obligations,
shall be distributed to the Lenders pro rata in accordance with their respective CAM Percentages.
Any direct payment received by a Lender upon or after the CAM Exchange Date, including by way of
setoff, in respect of an Obligation shall be paid over to the Administrative Agent for distribution
to the Lenders in accordance herewith.



ARTICLE IX

ADMINISTRATIVE AGENT




          9.01 Appointment and Authority. (a) Each of the Lenders and each L/C Issuer hereby
irrevocably appoints Bank of America (including with respect to the Canadian Revolving Credit
Facility, acting through Bank of America-Canada Branch) to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. Except for Section 9.06, the provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither the Borrowers nor
any other Loan Parties shall have rights as a third party beneficiary of any of such provisions.



          (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a
potential



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Cash Management Bank) and each of the L/C Issuers hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender and such L/C Issuer for
purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the
Loan Parties to secure any of the Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent”
and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant
to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies
thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all
provisions of this Article IX and Article XI (including Section 11.04(c),
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the
Loan Documents) as if set forth in full herein with respect thereto



          (c) For the purposes of creating a solidarité active in accordance with Article 1541 of the
Civil Code of Quebec between each Secured Party, taken individually, on the one hand, and the
Administrative Agent, on the other hand, each Loan Party and each such Secured Party acknowledges
and agrees with the Administrative Agent that such Secured Party and the Administrative Agent are
hereby conferred the legal status of solidary creditors of each such Loan Party in respect of all
Obligations owed by each such Loan Party to the Administrative Agent and such Secured Party
hereunder and under the other Loan Documents (collectively, the “Solidary Claim”) and that,
accordingly, but subject (for the avoidance of doubt) to Articles 1542 and 1543 of the Civil Code
of Québec, each such Loan Party is irrevocably bound towards the Administrative Agent and each
Secured Party in respect of the entire Solidary Claim of the Administrative Agent and such Secured
Party. As a result of the foregoing, the parties hereto acknowledge that the Administrative Agent
and each Secured Party shall at all times have a valid and effective right of action for the entire
Solidary Claim of the Administrative Agent and such Secured Party and the right to give full
acquittance for it. Accordingly, and without limiting the generality of the foregoing, the
Administrative Agent, as solidary creditor with each Secured Party, shall at all times have a valid
and effective right of action in respect of the Solidary Claim and the right to give a full
acquittance for same. By its execution of the Loan Documents to which it is a party, each such
Loan Party and Secured Party not a party hereto shall also be deemed to have accepted the
stipulations hereinabove provided. The parties further agree and acknowledge that such Liens
(hypothecs) under the Collateral Documents and the other Loan Documents shall be granted to the
Administrative Agent, for its own benefit and for the benefit of the Secured Parties, as solidary
creditor as hereinabove set forth.



          9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with any Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



          9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;



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     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders, Required U.S. Lenders or Required Canadian
Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or
applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



          The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed to not have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by a Borrower, a Lender or an L/C Issuer.



          The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.



          9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the
Administrative Agent may presume that such condition is reasonably satisfactory to such Lender or
such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from
such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



          9.05 Delegation of Duties. (a) The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through



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any one or more individual(s) or institution(s) as separate trustee(s), co-trustee(s),
collateral agent(s), collateral sub-agent(s) or collateral co-agent(s) (any such additional
individual or institution being referred to herein as a “Supplemental Collateral Agent”)
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.



          (b) In the event that the Administrative Agent appoints a Supplemental Collateral Agent with
respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended
by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to
the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such
Supplemental Collateral Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and necessary to the exercise or performance thereof by
such Supplemental Collateral Agent shall run to and be enforceable by either the Administrative
Agent or such Supplemental Collateral Agent, and (ii) the provisions of this Article and of
Section 11.04 that refer to the Administrative Agent shall inure to the benefit of such
Supplemental Collateral Agent and all references therein to the Administrative Agent shall be
deemed to be references to the Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.



          (c) Should any instrument in writing from any Loan Party be required by any Supplemental
Collateral Agent so appointed by the Administrative Agent for more fully and certainly vesting in
and confirming to him or it such rights, powers, privileges and duties, such Loan Party shall
execute, acknowledge and deliver any and all such instruments promptly upon request by the
Administrative Agent. In case any Supplemental Collateral Agent, or a successor thereto, shall
die, become incapable of acting, resign or be removed, all the rights, powers, privileges and
duties of such Supplemental Collateral Agent, to the extent permitted by law, shall vest in and be
exercised by the Administrative Agent until the appointment of a new Supplemental Collateral Agent.



          9.06 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuers and the Borrowers. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Specified U.S. Borrower, to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States and Canada. If no
such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such



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successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrowers and such successor. After the
retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 11.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



          9.07 Non-Reliance on  Administrative Agent and Other Lenders. Each Lender
and each L/C Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



          9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Bookrunners, Syndication Agents or Documentation Agent listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C
Issuer hereunder.



          9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether theh Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuers and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuers and the Administrative Agent under
Sections 2.03(h) and (i), 2.09 and 11.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make
such payments to the Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 11.04.




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          Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
any L/C Issuer or in any such proceeding.



          9.10 Collateral and Guaranty Matters. Each of the Lenders (including in its
capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuers
irrevocably authorize the Administrative Agent, at its option and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than (A) contingent indemnification obligations and (B)
obligations and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements as to which arrangements reasonably satisfactory to the applicable Cash
Management Bank or Hedge Bank shall have been made) and the expiration or termination of all
Letters of Credit (other than Letters of Credit as to which other arrangements reasonably
satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been
made), (ii) that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in
writing in accordance with Section 11.01;




     (b) to release any Guarantor from its obligations under the Guaranties if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder; and




     (c) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(j).



          Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under a Guaranty
pursuant to this Section 9.10. In each case as specified in this Section 9.10, the
Administrative Agent will, at the Borrowers’ expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under the Collateral Documents or
to subordinate its interest in such item, or to release such Guarantor from its obligations under
the Guaranties, in each case in accordance with the terms of the Loan Documents and this
Section 9.10.



          9.11 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash
Management Bank or Hedge Bank that obtains the benefits of Section 8.03, the any Guaranty
or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document
shall have any right to notice of any action or to consent to, direct or object to any action
hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender and, in such case,
only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision
of this Article IX to the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other reasonably satisfactory arrangements have been made with respect to,
Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless
the Administrative Agent has received written notice of such Obligations, together with such
supporting documentation as the Administrative Agent may request, from the applicable Cash
Management Bank or Hedge Bank, as the case may be. Upon the



139









 







request of the Administrative Agent at any time, the Hedge Banks and the Cash Management Banks
shall provide to the Administrative Agent a summary of outstanding obligations under any Cash
Management Agreements or Swap Contracts secured by a Lien on any asset of any Loan Party, as of
such date as may be reasonably requested by the Administrative Agent, showing the aggregate amount
of such obligations determined on a marked-to-market basis and such other information reasonably
requested by the Administrative Agent. At the request of the Administrative Agent from time to
time, the Hedge Banks and the Cash Management Banks shall provide to the Administrative Agent
copies of any Cash Management Agreements or Swap Contracts pursuant to which obligations secured by
a Lien on any asset of any Loan Party have been incurred.



ARTICLE X

[RESERVED]




ARTICLE XI

MISCELLANEOUS




          11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by any Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the applicable
Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment, waiver or consent
shall:




     (a) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;




     (b) increase the aggregate Commitments under the Revolving Credit Facility to an amount
greater than $350,000,000 without the consent of each Lender;




     (c) postpone any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under such other Loan Document without the written consent of each Lender
entitled to such payment;




     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section
11.01) any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to such amount; provided,
however, that only the consent of the Required Lenders shall be necessary to amend
the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest
or Letter of Credit Fees at the Default Rate;




     (e) change (i) Section 8.03 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender;




     (f) change (i) any provision of this Section 11.01 or the definition of
“Required Lenders”, “Required U.S. Lenders”, “Required Canadian Lenders” or “Supermajority
Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to amend,



140









 







waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder (other than the definitions specified in clause (ii) of this Section
11.01(f)), without the written consent of each Lender;




     (g) release all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender (unless all Obligations
have been paid in full in cash and the Commitments terminated);




     (h) release all or substantially all of the value of any Guaranty, without the written
consent of each Lender, except to the extent the release of any Subsidiary from a Guaranty
is permitted pursuant to Section 9.10 (in which case such release may be made by the
Administrative Agent acting alone);




     (i) amend, modify or waive any provision of this Agreement, in each case governing the
rights of the Lenders under any Facility, without the written consent of Lenders holding a
majority in interest of the obligations under such Facility, if such amendment, modification
or waiver, or such provision, by its express terms applies only to such Facility (or only to
the Lenders thereunder) and if such amendment, modification or waiver adversely affects the
Lenders under such Facility;




     (j) increase the advance rates set forth in the definition of the terms “U.S. Borrowing
Base” or “Canadian Borrowing Base” without the written consent of each Lender;




     (k) change or otherwise modify the eligibility criteria, eligible asset classes,
reserves, sublimits in respect of any Borrowing Base, or add new asset categories to any
Borrowing Base, or otherwise cause any Borrowing Base or availability under the Revolving
Credit Facility provided for herein to be increased, in each case without the written
consent of the Supermajority Lenders; provided that this clause (k) shall
not limit the discretion of the Administrative Agent to change, establish or eliminate any
reserves, to add assets acquired in a Permitted Acquisition to any Borrowing Base or to
otherwise exercise its discretion or Credit Judgment in respect of any determination
expressly provided hereunder to be made by the Administrative Agent in its discretion or
Credit Judgment, all to the extent otherwise set forth herein; or




     (l) amend, modify or change the provisions of Section 8.04 or the definition of
“CAM Percentage” without the written consent of each Lender.


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect
the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the applicable Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of such Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.




     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the



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Required Lenders, the Borrowers may replace such non-consenting Lender in accordance with
Section 11.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrowers to be made pursuant to this paragraph).



     Each Loan Party acknowledges the agreements set forth in the Fee Letter and agrees that it
will execute and deliver such amendments to the Loan Documents as shall be deemed advisable by the
Bookrunners to give effect to the provisions of the Fee Letter. Notwithstanding anything to the
contrary in this Section 11.01, the Administrative Agent and the Loan Parties shall be
permitted to execute and deliver such amendments and such amendments shall become effective without
any further action or consent of any other party to any Loan Document if the same is not objected
to in writing by the Required Lenders within five (5) Business Days following receipt of notice
thereof.



     Subject to the restrictions set forth in the foregoing subparagraphs 11.01(a) to (l),
but notwithstanding anything else to the contrary contained in this Section 11.01, (a) with
respect to any provision contained in this Agreement relating to any Facility, the Administrative
Agent, the Borrowers and a majority in interest of the Lenders under such Facility shall be
permitted to amend such provision, without the consent of any other Lender, solely to the extent
reasonably necessary or advisable to (i) comply with Applicable Law relating to such Facility or
(ii) better implement the intentions of this Agreement with respect to such Facility, and, in the
case of any amendment made pursuant to this clause (ii), solely to the extent that such amendment
does not impair the rights, obligations or interests of any other Lender under this Agreement in
any material respect and (b) at any time on or before the date that is sixty (60) days after the
Closing Date, the Administrative Agent and the Borrowers shall have jointly identified an obvious
error or any error or omission of a technical or immaterial nature, in each case, in any provision
of the Loan Documents, then the Administrative Agent and the Borrowers shall be permitted to amend
such provision and such amendment shall become effective without any further action or consent of
any other party to any Loan Document if the same is not objected to in writing by the Required
Lenders within five (5) Business Days following receipt of notice thereof.



          11.02 Notices; Effectiveness; Electronic Communications. (a) Notices Generally.
Except in the case of notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:




     (i) if to the Borrowers, the Borrower Agent, the Administrative Agent, the L/C Issuers
or the Swing Line Lenders, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 11.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other
communications delivered through electronic communications to the extent provided in subsection (b)
below shall be effective as provided in such subsection (b).





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Each Loan Party located outside of the U.S. hereby irrevocably appoints the Borrower Agent as its
agent to receive on behalf of such Loan Party and its property service of copies of the summons and
complaint and any other process which may be served in any such action or proceeding. Such service
may be made by mailing or delivering a copy of such process to such Loan Party in care of the
Borrower Agent at the Borrower Agent’s address specified in this Agreement, and such Loan Party
hereby irrevocably authorizes and directs the Borrower Agent to accept such service on its behalf.
As an alternative method of service, each Loan Party also irrevocably consents to the service of
any and all process in any such action or proceeding by the mailing of copies of such process to
such Loan Party at its address specified in this Agreement.




          (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C
Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrowers may, in their discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.




          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or the Bookrunners
or any of their Related Parties (collectively, the “Agent Parties”) have any liability to
the Borrowers or any other Loan Parties, any Lender, any L/C Issuer or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrowers’ or the Administrative Agent’s or any Bookrunner’s transmission of
Borrower Materials through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Agent Party; provided, however, that in no event shall any Agent Party have any
liability to any Borrower, any other Loan Party, any Lender, any L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages).




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          (d) Change of Address, Etc. Each Borrower, the Administrative Agent, each L/C Issuer
and each Swing Line Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower Agent, the Administrative Agent, the applicable L/C Issuer and the
applicable Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an effective address,
contact name, telephone number, telecopier number and electronic mail address to which notices and
other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to
at all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrowers or their securities for purposes of
United States Federal or state securities laws.




          (e) Reliance by the Administrative Agent, L/C Issuers and Lenders. The Administrative
Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or
on behalf of a Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. Each
Borrower shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of a Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.




          11.03 No Waiver; Cumulative Remedies. No failure by any Lender, any L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.




          Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) any L/C Issuer or any Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and



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under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the
matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.




          11.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrowers
shall pay (i) all reasonable out-of-pocket expenses incurred by the Joint Bookrunners,
Administrative Agent and their respective its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and the Joint Bookrunners), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by each L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or any L/C Issuer) in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.




          (b) Indemnification by the Borrowers. The Borrowers shall jointly and severally
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and reasonably related expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by any Borrower or any other Loan Party or any such Borrower’s or such Loan Party’s directors,
shareholders or creditors, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.




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          (c) Reimbursement by Lenders. To the extent that any Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or any L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or any L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).




          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




          (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.




          (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, any L/C Issuer and any Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.




          11.05 Payments Set Aside. To the extent that any payment by or on behalf of a
Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative
Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds
of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer
severally agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Overnight Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers
under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement.




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          11.06 Successors and Assigns. (a) Successors and Assigns Generally. The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that neither the Borrowers nor
any other Loan Parties may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of Section 11.06(b), (ii) by way of participation in
accordance with the provisions of Section 11.06(d), or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of Section 11.06(f) (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, each L/C Issuer and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this Section
11.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




          (i) Minimum Amounts.





     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the applicable Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to any Swing Line Lender’s rights and obligations in respect
of the applicable Swing Line Loans or (B) prohibit any Lender from assigning all or a
portion of its rights and obligations among separate Facilities on a non-pro rata basis;



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     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the applicable Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has occurred
and is continuing at the time of such assignment (2) such assignment is to a Lender,
an Affiliate of a Lender or an Approved Fund or (3) during the primary syndication
of the Loans and Commitments;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
any Commitment if such assignment is to a Person that is not a Lender with a
Commitment, an Affiliate of such Lender or an Approved Fund with respect to such
Lender;




     (C) the consent of the applicable L/C Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or
more Letters of Credit (whether or not then outstanding); and




     (D) the consent of the applicable Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in respect of
the Revolving Credit Facility.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to a Borrower
or any Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the applicable Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
Section 11.06(d).




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          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.




          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or any Borrower or any Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuesr shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 11.01 that affects such Participant. Subject to
subsection (e) of this Section, each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to Section
11.06(b). To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.




          (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the applicable Borrower’s
prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 3.01 unless the applicable Borrower is notified of
the participation sold to such Participant and such Participant agrees, for the benefit of such
Borrower, to comply with Section 3.01(e) as though it were a Lender.




          (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.




          (g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Credit Commitment and Revolving Credit Loans pursuant to Section 11.06(b), Bank
of America (and/or Bank of America-Canada Branch, as applicable) may, (i) upon 30 days’ notice to
the Borrowers and the Lenders, resign as U.S. L/C Issuer and Canadian L/C Issuer and/or (ii) upon
30 days’ notice to the Borrowers, resign as U.S. Swing Line Lender and Canadian Swing Line Lender.
In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower Agent shall
be entitled to



149









 






appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower Agent to appoint any such
successor shall affect the resignation of Bank of America (and/or Bank of America-Canada Branch, as
applicable) as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America (and/or
Bank of America-Canada Branch, as applicable) resigns as L/C Issuer, it shall retain all the
rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(b)). If Bank of America
(and/or Bank of America-Canada Branch, as applicable) resigns as Swing Line Lender, it shall retain
all the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including the right to require
the Lenders to make Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as
applicable, or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04. Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America (and/or Bank of America-Canada Branch, as
applicable) with respect to such Letters of Credit.




          11.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to any
Borrower and its obligations, (g) with the consent of the applicable Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a breach of this Section
or (ii) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than a Borrower. In addition,
the Administrative Agent, each Joint Bookrunner and each Lender may disclose the existence of this
Agreement and the information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers in connection with the administration and
management of this Agreement and the other Loan Documents.




          For purposes of this Section, “Information” means all information received from any
Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their
respective businesses, other than any such information that is available to the Administrative
Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by any Loan
Party or any Subsidiary thereof, provided that, in the case of information received from a
Loan Party or any such Subsidiary after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this



150









 






Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.




          Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the
Information may include material non-public information concerning the Borrowers or a Subsidiary,
as the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.




          11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower
or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to such Lender or such
L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such obligations of such
Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of
such Lender or such L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, each L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender
and each L/C Issuer agrees to notify the applicable Borrower and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application. No Lender shall set off against any Dominion
Account without the prior consent of Administrative Agent.




          11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the applicable Borrowers. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of the Obligations
hereunder. Without limiting the generality of the foregoing, if any provision of any of the Loan
Documents would obligate Canadian Loan Parties to make any payment of interest with respect to the
Canadian Obligations in an amount or calculated at a rate which would be prohibited by applicable
Law or would result in the receipt of interest with respect to the Canadian Obligations at a
criminal rate (as such terms are construed under the Criminal Code (Canada)), then notwithstanding
such provision, such amount or rates shall be deemed to have been adjusted with retroactive effect
to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law
or so result in a receipt by the applicable recipient of interest with respect to the Canadian
Obligations at a criminal rate, such adjustment to be effected, to the extent necessary, as
follows: (i) first, by reducing the amount or rates of interest required to be paid to the
applicable recipient under the Loan Documents; and (ii) thereafter, by reducing any fees,
commissions, premiums and other amounts required to be paid to the applicable recipient which would
constitute interest with respect to the



151









 






Canadian Obligations for purposes of Section 347 of the Criminal Code (Canada).
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if
the applicable recipient shall have received an amount in excess of the maximum permitted by that
section of the Criminal Code (Canada), then Canadian Loan Parties shall be entitled, by notice in
writing to the Administrative Agent, to obtain reimbursement from the applicable recipient in an
amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an
amount payable by the applicable recipient to the applicable Canadian Loan Party. Any amount or
rate of interest with respect to the Canadian Obligations referred to in this Section 11.09
shall be determined in accordance with generally accepted actuarial practices and principles as an
effective annual rate of interest over the term that any Canadian Revolving Credit Loans to the
Canadian Borrower remain outstanding on the assumption that any charges, fees or expenses that fall
within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate
to a specific period of time, be prorated over that period of time and otherwise be prorated over
the period from the Closing Date to the date of payment in full of the Canadian Obligations, and,
in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries
appointed by the Administrative Agent shall be conclusive, absent manifest error, for the purposes
of such determination.




          11.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents, together with the provisions of the Commitment Letter
that are stated to survive the execution hereof and the Fee Letter, constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. Except as
provided in Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties
hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or
in “pdf” or similar format by electronic mail shall be effective as delivery of a manually executed
counterpart of this Agreement.




          11.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.




          11.12 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




          11.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if a Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a



152









 






Defaulting Lender or if any other circumstance exists hereunder that gives a Borrower the right to replace a
Lender as a party hereto, then the applicable Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 11.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents (which assignee may be another Lender, if a Lender accepts
such assignment), provided that:





     (a) such Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or such Borrower (in the case of all other
amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Laws.



          A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling a Borrower to require
such assignment and delegation cease to apply.




          11.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          (b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING WILL BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
IN SUCH FEDERAL COURT; PROVIDED THAT NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW.




153









 








          (c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.




          (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




          11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower and each other Loan Party
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Administrative Agent and the
Bookrunners are arm’s-length commercial transactions between the Borrowers, the other Loan Parties
and their respective Affiliates, on the one hand, and the Administrative Agent and the Bookrunners
on the other hand, (B) each Borrower and each other Loan Party has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each
Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Administrative Agent and each Bookrunner is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for any Borrower, any other Loan Party or
any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent,
nor any Bookrunner, has any obligation to any Borrower, any other Loan Party or any of their
respective Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Bookrunners and their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrowers, the other Loan Parties and their
respective Affiliates, and neither the Administrative Agent nor any Bookrunner has any obligation
to disclose any of such interests to any Borrower, any other Loan Party or any of their respective
Affiliates. To the fullest extent permitted by law, each Borrower and each other Loan Party hereby
waives and releases any claims that it may have against the Administrative Agent and the
Bookrunners with respect to any breach or



154









 






alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.




          11.17 Electronic Execution of Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents) shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act..




          11.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name and address of
each Loan Party and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act. Each Borrower shall, promptly
following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” an anti-money laundering rules and
regulations, including the Act.




          11.19 Judgment Currency. If for the purpose of obtaining judgment in any court it is
necessary to convert an amount due hereunder in the currency in which it is due (the “Original
Currency”) into another currency (the “Second Currency”), the rate of exchange applied shall be
that at which, in accordance with normal banking procedures, the Administrative Agent could
purchase in the New York foreign exchange market, the Original Currency with the Second Currency on
the date two (2) Business Days preceding that on which judgment is given. Each Loan Party agrees
that its obligation in respect of any Original Currency due from it hereunder shall,
notwithstanding any judgment or payment in such other currency, be discharged only to the extent
that, on the Business Day following the date the Administrative Agent receives payment of any sum
so adjudged to be due hereunder in the Second Currency, the Administrative Agent may, in accordance
with normal banking procedures, purchase, in the New York foreign exchange market, the Original
Currency with the amount of the Second Currency so paid; and if the amount of the Original Currency
so purchased or could have been so purchased is less than the amount originally due in the Original
Currency, each Loan Party agrees as a separate obligation and notwithstanding any such payment or
judgment to indemnify the Administrative Agent and the Appropriate Lenders against such loss. The
term “rate of exchange” in this Section 11.19 means the spot rate at which the Administrative
Agent, in accordance with normal practices, is able on the relevant date to purchase the Original
Currency with the Second Currency, and includes any premium and costs of exchange payable in
connection with such purchase.




          11.20 Language. The parties have requested that this Agreement and the other
documents contemplated hereby or relating hereto be drawn up in the English language. Les parties
ont requis que cette convention ainsi que tous les documents qui y sont envisagés ou qui s’y
rapportent soient rédigés en langue anglaise.




          11.21 Intercreditor Agreement. Reference is made to the Lien Subordination and
Intercreditor Agreement dated as of May 20, 2008, among Bank of America, N.A., as collateral agent
for the Revolving Facility Secured Parties referred to therein; U.S. Bank National



155









 






Association, as Trustee and as Noteholder Collateral Agent; Nortek, Inc.; and the other
subsidiaries of Nortek, Inc. named therein (the “Intercreditor Agreement”). Each Lender hereunder
(a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees
that it will be bound by and will take no actions contrary to the provisions of the Intercreditor
Agreement and (c) authorizes and instructs the Collateral Agent to enter into the Intercreditor
Agreement as Collateral Agent and on behalf of such Lender. The foregoing provisions are intended
as an inducement to the lenders under the Credit Agreement to extend credit and such enders are
intended third party beneficiaries of such provisions and the provisions of the Intercreditor
Agreement.




[Remainder of Page Intentionally Blank]





156












 






          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.




	 	 	 	 	 
	 	NORTEK, INC., as the Specified U.S. Borrower

 	 
	 	By:  	/s/ Kevin W. Donnelly
 	 
	 	 	Name:  	Kevin W. Donnelly  	 
	 	 	Title:  	Vice President, Secretary and General Counsel 	 
	 



[Signature Page to Credit Agreement]




 









 







	 	 	 	 	 
	 	VENTROL AIR HANDLING SYSTEMS INC., 

as a Canadian Borrower

 	 
	 	By:  	/s/ Kevin W. Donnelly
 	 
	 	 	Name:  	Kevin W. Donnelly 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



[Signature Page to Credit Agreement]




 









 







	 	 	 	 	 
	 	ADVANCED BRIDGING TECHNOLOGIES, INC.

AIGIS MECHTRONICS, INC.

ALLSTAR PRO, LLC

AUBREY MANUFACTURING, INC.

BROAN-NUTONE LLC

CES GROUP, INC.

CLEANPAK INTERNATIONAL, INC.

ELAN HOME SYSTEMS, L.L.C.

GEFEN, INC.

GOVERNAIR CORPORATION

GTO, INC.

HC INSTALLATIONS, INC.

HOMELOGIC LLC

HUNTAIR, INC.

INTERNATIONAL ELECTRONICS, INC.

J.A.R. INDUSTRIES, INC.

JENSEN INDUSTRIES, INC.

LINEAR H.K. LLC

LINEAR LLC

LITE TOUCH, INC.

MAGENTA RESEARCH LTD.

MAMMOTH, INC.

MAMMOTH CHINA LTD.

NILES AUDIO CORPORATION

NORDYNE CHINA LLC

NORDYNE INC.

NORDYNE INTERNATIONAL, INC.

NORTEK INTERNATIONAL, INC.

NUTONE INC.

OMNIMOUNT SYSTEMS, INC.

OPERATOR SPECIALTY COMPANY, INC.

PACIFIC ZEPHYR RANGE HOOD, INC.

PANAMAX INC.

RANGAIRE GP, INC.

RANGAIRE LP

RANGAIRE LP, INC.

SECURE WIRELESS, INC.

SPEAKERCRAFT, INC.

TEMTROL, INC.

WDS LLC

WEBCO, INC.

XANTECH CORPORATION

ZEPHYR CORPORATION



as a Borrower

 	 
	 	By:  	/s/ Kevin W. Donnelly
 	 
	 	 	Name:  	Kevin W. Donnelly 	 
	 	 	Title:  	Vice President and Secretary


(of entity listed or as an officer of the managing
member, sole member or general partner) 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., 
as Administrative Agent

 	 
	 	By:  	/s/ Michael Lemiszko
 	 
	 	 	Name:  	Michael Lemiszko 	 
	 	 	Title:    Senior Vice President 	 
	 



[Signature Page to Credit Agreement]




 









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A (acting through its Canada

branch), as Administrative Agent

 	 
	 	By:  	/s/ Michael Lemiszko
 	 
	 	 	Name:  	Michael Lemiszko 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]





 












 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,
 as a U.S. Revolving Credit Lender

 	 
	 	By:  	/s/ Michael Lemiszko
 	 
	 	 	Name:  	Michael Lemiszko  	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARNERS L.P., 

as a U.S. Revolving Credit Lender

 	 
	 	By:  	/s/ Bruce H. Mendelsohn
 	 
	 	 	Name:  	BRUCE H. MENDELSOHN 	 
	 	 	Title:  	AUTHORIZED SIGNATORY 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, 

as a U.S. Revolving Credit Lender

 	 
	 	By:  	/s/ Ian Nalitt
 	 
	 	 	Name:  	Ian Nalitt 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                   /s/ Christopher Day
 	 
	 	 	Name:  	Christopher Day 	 
	 	 	Title:  	Associate 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, 

as a U.S. Revolving Credit Lender

 	 
	 	By:  	/s/ David B. Julie
 	 
	 	 	Name:  	David B. Julie  	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans  	 
	 	 	Title:  	Associate Director 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A. (acting through its Canada 

branch), as a Canadian Revolving Credit Lender

 	 
	 	By:  	/s/ Michael Lemiszko
 	 
	 	 	Name:  	Michael Lemiszko 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]





 












 





	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARNERS L.P.,

as a Canadian Revolving Credit Lender

 	 
	 	By:  	/s/ Bruce H. Mendelsohn
 	 
	 	 	Name:  	BRUCE H. MENDELSOHN 	 
	 	 	Title:  	AUTHORIZED SIGNATORY 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,

as a Canadian Revolving Credit Lender

 	 
	 	By:  	/s/ David B. Julie
 	 
	 	 	Name:  	David B. Julie 	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By:  	          /s/  Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	CREDIT SUISSE, TORONTO BRANCH, 

as a Canadian Revolving Credit Lender

 	 
	 	By:  	/s/  Alain Daoust
 	 
	 	 	Name:  	Alain Daoust 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                        /s/  Steve W. Fuh
 	 
	 	 	Name:  	Steve W. Fuh 	 
	 	 	Title:  	Vice-President 	 
	 



[Signature
Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as U.S. L/C Issuer and U.S. Swing Line Lender

 	 
	 	By:  	/s/ Michael Lemiszko
 	 
	 	 	Name:  	Michael Lemiszko 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A. (acting through its Canada branch), as Canadian L/C Issuer and
Canadian Swing Line Lender

 	 
	 	By:  	/s/ Michael Lemiszko
 	 
	 	 	Name:  	Michael Lemiszko 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]